TMI Blog2005 (6) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... nsideration amount and merely because depreciation had been allowed, it could not be said that the balance was the excess amount between the price and the written down value. – therefore there is no infirmity in tribunal’s order - - - - - Dated:- 15-6-2005 - Judge(s) : D. A. MEHTA., MS. H. N. DEVANI. JUDGMENT The judgment of the court was delivered by D.A. Mehta J.- The Income-tax Appellate Tribunal, Ahmedabad Bench "B", has referred the following question for the opinion of this court under section 256(1) of the Income-tax Act, 1961 (the "Act"), at the instance of the Commissioner of Income-tax. "Whether, the Appellate Tribunal was right in law and on facts in holding that what was sold by the assessee-firm to the limited compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellate Assistant Commissioner after setting aside the order passed by the Appellate Assistant Commissioner on July 18, 1977. (d) The reinstated matter was taken up by the Commissioner of Income-tax (Appeals) who had derived jurisdiction by then. The Commissioner of Income-tax (Appeals) held by his order dated February 29, 1980, that section 41(2) of the Act was applicable and the correct profit taxable under the said section would be Rs. 5,66,177 and not Rs. 10,25,135. (e) The assessee challenged the said order by way of appeal before the Tribunal and the Revenue preferred cross-objections challenging the reduction of taxable profit under section 41(2) of the Act. (f) The Tribunal vide its order dated July 16, 1981 restored the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be kept alive. (k) The assessee went in appeal before the Commissioner of Income-tax (Appeals) who for the reasons stated in his order dated March 23, 1988, held that the assessee-firm had entered into a slump sale whereby the entire business was sold to the limited company as going concern and therefore, the assessee was not liable to be taxed under section 41(2) of the Act. (l) The Revenue carried the matter in appeal before the Tribunal. The Tribunal for the reasons stated in his order dated January 6, 1992 came to the conclusion that the Commissioner of Income-tax (Appeals) had rightly read the documents in question and the assessee was not liable to be taxed under section 41(2) of the Act. However, the Tribunal restored the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appearing on behalf of the respondent-assessee submitted that there was no error in the impugned order of the Tribunal and there was no dispute as to the legal proposition, but the findings of fact recorded by the Tribunal were such that no interference was called for. The Tribunal had applied the settled legal position to the facts found. As can be seen from the record the Tribunal has confirmed the order of the Commissioner of Income-tax (Appeals) and deleted the addition made under section 41(2) of the Act by holding that what the assessee-firm had sold was the whole business as a going concern. The Tribunal has agreed with the findings given by the Commissioner of Income-tax (Appeals) that when all the agreements are read together w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of stock-in-trade (d) Aggregate value of loss, advance, cash, bank balance, investment 28,34,758 etc. ----------- Total 77,37,579 Less: Liabilities taken over 62,22,579 ----------- 15,15,000" ------------------------------------------------------------------------------- On going through the aforesaid figures it is apparent that the Assessing Officer had adopted the aggregate values of the building structure as well as plant and machinery, furniture and stock-in-trade. On a plain reading of section 41(2) of the Act it becomes clear that for the purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form of various agreements) and on the facts that the transaction was a slump sale, i.e., the entire business undertaking was sold as a going concern and there was no itemised sale. Even the assessing authority has not been able to work out the itemised sale qua each building, machinery or plant as the case may be. Therefore, in the absence of any evidence on record to dislodge the findings of fact recorded by the Commissioner (Appeals) and the Tribunal, it is not possible to find any infirmity in the impugned order of the Tribunal so as to hold that the provisions of section 41(2) of the Act are applicable to the facts of the present case. Before parting it is necessary to take note of the fact that the Supreme Court itself has in a sim ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
