Transfer of a business against share or bond issue is exchange and not ‘slump sale’

Bombay High Court: Upholding the decision of the Income Tax Appellate Tribunal, a division bench comprising of SC Dharamadhikari and GC Kulkarni, JJ held that transfer of a business undertaking as a going concern against bonds and preference shares issued was not a sale, but an exchange. Subsequently, section 2(42C) and section 50B of the Income Tax Act, 1961 relating to the computation of capital gains were not applicable to such a transfer. In the present case, the  respondent company had transferred its lift division to another company by way of a slump sale and as consideration for the transfer, preference shares and bonds were allotted by that company to the respondent. The taxpayer claimed that the transfer was an ‘exchange’ and not a ‘sale’ and therefore, was not taxable as slump sale. However, this was not accepted by the Tax Officer. The company then appealed to the Tribunal which accepted its contentions. Aggrieved by the decision of the Tribunal, CIT moved the High Court. The Bombay High Court relying on the findings and observations of the Tribunal, also concluded that the entire scheme of arrangement envisaged that the transfer of the lift division was not for any monetary consideration, thus it was a case of exchange and not sale. The Court distinguished the facts of this case with the  Delhi High Court ruling of SREI Infrastructure  Finance Limited (SIFL) vs. Income Tax Settlement Commission, Writ Petition Civil No. 1592/2012 where the consideration was in terms of  money as well as shares, thus the transfer could not be termed as an exchange in that case. Commissioner of Income Tax vs. Bharat Bijlee Limited, Income Tax Appeal No. 2153 of 2011, decided on May 9, 2014

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