TMI Blog2008 (11) TMI 336X X X X Extracts X X X X X X X X Extracts X X X X ..... rm refers only to depreciable assets. Thus, section 50 is not applicable. - The view of the Tribunal is, thus, consistent with the settled law. - No substantial question of law arises for consideration. - The appeal is dismissed. - 499 of 2007 - - - Dated:- 4-11-2008 - ADARSH KUMAR GOEL and L. N. MITTAL JJ. Vivek Sethi for the appellant. Ms. Radhika Suri for the respondent. JUDGMENT The judgment of the court was delivered by 1. ADARS1-1 KUMAR GOEL J. - This appeal has been preferred by the Revenue under section 260A of the Income-tax Act, 1961 (for short "the Act"), against the order of the Income-tax Appellate Tribunal, Amritsar Bench, Amritsar, passed in I. T. A. No. 372 (Asr.) of 2002 on May 18, 2007, for the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n if some of the assets were retained by the transferor and, thus, sections 50 and 50A of the Act, were not applicable. Paragraph 29 of the order is reproduced below: "29. From the above, it is evident that for a sale to be termed as a 'slump sale', it is not essential that all the assets and liabilities must be transferred. Even if some assets and liabilities are retained by the transferor, the sale would not lose the character of being a slump sale, if the transfer is of a going concern, on that basis and the transferee is in a position to carry on the business without any interruption. In the present case, the right to use the technical know-how developed by the assessee was granted by the assessee to the transferee against the payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not entitled to the benefit of indexing under section 48 of the Act, in view of the provisions of sections 50 and 50A of the Act. 6. Learned counsel for the assessee submitted that concept of sale of block of assets was different from sale of the entire undertaking as a going concern which included land and goodwill to which the principle of depreciation did not apply. It was also submitted that the sale was not item-wise and it was not possible to ascertain the value of block of assets or individual assets as has been rightly held by the Tribunal. Reference has also been made to definition of block of assets under section 2(11) of the Act, which is to the following effect: "'block of assets' means a group of assets falling within a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 of the Act sale of block of assets is treated as short-term capital gain. The case of the assessee was to treat the sale proceeds on the sale of the entire concern as long-term capital? The hon'ble Supreme Court held that the sale proceeds could not be treated as profit of business and section 41(2) of the Act was not applicable. In CIT v. Artex Manufacturing Co. [1997] 227 ITR 260 (SC); [1997] 141 CTR 290, another judgment delivered on the same day by the same Bench, it was held that the price attributable to plant, machinery and dead stock being ascertainable, the case of the Artex Manufacturing Co. [1997] 227 ITR 260 (SC), was distinguishable. 10. The assessee also relied upon the judgment of the Delhi High Court in P. N. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not dispute before us that the 'undertaking' of the assessee was a 'capital asset' within the meaning of section 2(14) of the Act. The question is, accordingly, answered in the affirmative… The apex court observed that the expression 'undertaking' in section 4 of the Banking Companies (Acquisition and Transfer of Undertaking Act, 1969, clearly means a going concern with all its rights, liabilities and assets as distinct from the various rights and assets which compose it. In Halsbury's Laws of England it is said that (page 354): 'Although various ingredients go to make up an undertaking, the term describes not the ingredients, but the completed work from which the earning arise'. A support is lent to this view by the decision of the Karna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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