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2022 (3) TMI 620 - HC - Income TaxCapital gain - Assets transferred under scheme of demerger - transfer of all the assets and liabilities under the telecom undertaking to ICL without any consideration - whether demerger under the said scheme should not be treated as a transfer for the purposes of Section 45 and be taxed as capital gain? - ITAT set aside the order of the CIT(A) and come to a conclusion that one of the ingredients for computation for capital gains is consideration and since no consideration has been paid or received by assessee no capital gains would be proposed to be of assessee - HELD THAT:- We cannot find error with the conclusion of the ITAT that since there is no consideration for transfer of a capital asset, the capital gains computation mechanism fails and thus no capital gains tax can be levied on such transfer. In the case of transfer of capital asset, what can be taxed in the hands of the seller under the Act is real or actual gain that accrues/arises from transfer of the assets and hence, in absence of any sale consideration (resultant profit from such transfer) no notional gain can be imputed in the hands of the seller to tax such transfer. 7. Even the Assessing Officer taking the revaluation of assets in Indus as valuation for transfer of undertaking is incorrect. The Assessing Officer has failed to understand that carrying out such revaluation and passing accounting entry by assessee in its books of account does not represent any consideration whatsoever received from ICL or any third person towards transfer taken by ICL. We have to also note that Section 50D of the Act which provides for fair market value deemed to be full value of consideration in certain cases has been inserted by the Finance Act, 2012. For the Assessment Year 2013-14 Section 50D provides for consideration where the consideration received or accruing as a result of the transfer of a capital asset by an assessee is not ascertainable or cannot be determined. Even that cannot be applied because in the subject case it relates to assessment year 2010-11. Tribunal has not committed any perversity or applied incorrect principles to the given facts - No substantial question of law.
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