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2018 (11) TMI 113 - ITAT BANGALOREComputation of capital gains arising on slump sale - overriding title - nature of sale - Full value of consideration received or accruing as a result of Transfer of the capital asset - sale consideration receivable or accruing on slum sale - terms of agreement - whether said that ₹ 25.50 crores accrued as a result of the Transfer or was received at a later point of time by the Assessee towards slump sale? - Held that:- A reading of clause 3.2 of the Agreement dated 16.3.2007 in particular clause 3.4 would show that if on or before 31st December, 2007 if the Assessee does not get waiver of MGT from CPT then the Assessee will not be in a position to claim the sum equivalent to the amount due as MGT to CPT limited to a sum of ₹ 5 Crores. Therefore, there is an overriding title in so far as the receipt of ₹ 5 Crores is concerned by the Assessee from KCPL which is part of the sale consideration receivable or accruing on slum sale of Kochi Terminal Undertaking. In such circumstances it would not be correct to say that the sale consideration for the slump sale is a sum of ₹ 25.50 Crores by reading clause 3.1 of the Agreement dated 16.3.2007 in isolation. The evidence with regard to how much was the due to CPT towards MGT payable by the Assessee and how much was not waived by CPT have not been brought on record by the Assessee. The Assessee parted with the Kochi Terminal Undertaking on its slump sale as early as 16.3.2007 and the time for completion of condition precedent for slump sale as per the agreement, expired in December, 2007. KCPL refused to give any further extension of time for completion of the terms of the agreement by the Assessee. Therefore, there is merit in the contention of Assessee that it could not procure the required details from CPT and M/s. Aegis Logistics Ltd., who were the subsequent transferee of the Kochi Terminal Undertaking refused to co-operate. The issue should be remanded to the AO for consideration afresh on these aspects with a direction to the AO to exercise his powers under the Act, on specific request from the Assessee on the information required and the party from whom it is required, to establish its case that a sum of ₹ 5 Crores or such other lesser sum was in fact not receivable by the Assessee as per the terms of the Agreement dated 16.3.2007. Decided in favour of assessee for statistical purpose.
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