TMI Blog2011 (5) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer that the Assessing Officer has proceeded on the basis presuming that transaction attracts capital gains and treated transaction as short-term capital gains under section 50 of the Act and there is no finding as to whether the impugned transaction is a slump sale, which attract capital gains cannot be sustained - Held that the order passed by the Tribunal, Appellate Authority and the Assessing Officer is liable to be set aside and requires to be remitted back to the Assessing Officer to find out as to whether the impugned transaction is a slump sale and if so, whether it would attracts the provision of section 50 or 50B of the Act as admittedly provision of section 50B of the Act is not applible - Accordingly, answer the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king unit styled as 'Compack' and the other is known as MICR Printing Unit. It was sold with all its assets and liabilities as going concern under the agreement of sale dated 31-1-1990 to M/s. Manipal Power Press for a consideration of Rs. 8,50,000. However, as per the balance sheet on the date of sale there was a net deficit of Rs. 8,12,994, which was also taken over by the purchaser and therefore, the total consideration would be Rs. 16,62,995. Though the respondent had shown capital gain at Rs. 6,37,415, a revised assessment was filed stating that the said income does not constitute capital gains and the respondent is not liable to pay the capital gains. The Assessing Officer after considering the objections of the assessee held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be applicable and accordingly, dismissed the appeal filed by the revenue and allowed the cross-objection by holding that the transaction was slump sale and therefore capital gains was not attracted. 6. Being aggrieved by the order of the Tribunal dismissing the appeal and allowing the cross objection dated 30-8-2004, this appeal is filed by the revenue contending that section 50B, which was came into effect from 1-4-2000, was not applicable to the transaction which took place on 31-1-1990 and the transaction did not constitute slump sale and mere recital in the agreement would not make it slump sale and therefore, an order passed by the Tribunal and the Appellate Authority are liable to be set aside and the order passed by the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed by the Assessing Officer is also liable to be set aside. 9. The appeal has been admitted for above said consideration of substantial question of law that is modified by us as referred to above. 10. We have given careful consideration to the contentions urged by the learned Counsel appearing for the parties and scrutinized the material on record. 11. The material on record would clearly show that the impugned transaction is dated 31-1-1990 and therefore provision of section 50B of the Act, which has came into effect from 1-4-2000 is not applicable and therefore finding of the Tribunal to that effect cannot be sustained. However, on perusal of the order passed by the Appellate Authority and the Tribunal, it is clear that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of section 50 or 50B of the Act as admittedly provision of section 50B of the Act is not applicable. Accordingly, we answer the substantial question of law in favour of the respondent-assessee and pass the following: ORDER 1. The order passed by the Income-tax Appellate Tribunal, Bangalore in ITA No. 155/Bang/1997 and the Cross Objection No. 49/Bang/2003 dated 30-8-2004 confirming the order of the Appellate Authority, Commissioner of Appeals (III) Appeal No. ITA.15/MNG/CIT(A) dated 23-12-1996 is set aside. 2. The order of assessment passed by the Assessing Officer dated 25-2-1993 is also set aside. 3. The matter is remitted back to the Assessing Officer to pass fresh orders after affording opportunity to the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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