DCIT, Circle - 11, Kolkata, Kolkata V. M/s. Xpro India Ltd., Kolkata

ITA 214/KOL/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4893 (ITAT-KOLKATA)
• Duration Of Justice: 5 year(s) 1 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 09-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RADHEY SHYAM
• Assessee Lawyers: D S DAMLE
• Keywords: Depreciation; Question of law; Cost of acquisition; Bad and doubtful debts; Capital receipt
• Section: 43B; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI N.V.VASUSDEVAN, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 214 / KOL / 2011 ASSESSMENT YEAR :2005-06 DCIT, CIRCLE-11, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 V/S . M/S XPRO INDIA LTD., BIRLA BUILDING, 2 ND FLOOR, 9/1 R.N.MUKHERJEE ROAD, KOLKATA-700 001 [ PAN NO. AAACX 0120 H ] /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI RADHEY SHYAM, CIT-DR /BY RESPONDENT SHRI D.S. DAMLE, FCA /DATE OF HEARING 04-02-2016 /DATE OF PRONOUNCEMENT 23-03-2016 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE REVENUE IS AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-XII, KOLKATA DATED 16.11.2010. ASSESSMENT WAS FRAMED BY JCIT, RANGE-11 KOLKATA U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORD ER DATED 28.12.2007 FOR ASSESSMENT YEAR 2005-06. REVENUE HAS RAISED GROUNDS OF ITS APPEAL, WHICH REPRODUCED BELOW:- 1. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CAS E AND IN LAW, LD. CIT(A) ERRED IN DELETING THE CAPITAL GAIN AMOUNTING TO RS.10,92,09,696/- U/S 50B OF THE IT ACT TREATING TH E TRANSFER SLUMP SALE AS PER PROVISION OF SECTION 2(42C) OF THE IT ACT. ITA NO.214/KOL/2011 A.Y. 2005-06 DCIT CIR-11, KOL. V. M/S XPRO INDIA LTD . PAGE 2 2. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW, LD. CIT(A) ERRED IN DELETING THE DISALLOWANCE OF RS.2,5 6,26,930/- BEING THE COMPENSATION ON ACCOUNT OF MACHINE NOT PERFORMING A T AN AGREED LEVEL. 3. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW, LD. CIT(A) ERRED IN ALLOWING THE CLAIM OF THE ASSESSEE S BAD DEBT OF RS.42,50,084/- THOUGH THE ASSESSEE HAD FAILED TO FU LFILL THE CONDITION OF SECTION 36(2) OF THE IT ACT. 4. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW, LD. CIT(A) ERRED IN ALLOWING THE CLAIM OF ASSESSEE REGA RDING DELAYED PAYMENT OF EMPLOYEES CONTRIBUTION TOWARDS ESI AMOUN TING TO RS.50,289/- 2. THE FIRST ISSUE RAISED BY REVENUE IN THIS APPEAL IS THAT LD. CIT(A) ERRED IN DELETING THE CAPITAL GAIN FOR RS.10,92,9,696/- U /S 50B OF THE ACT FOR NOT TREATING THE TRANSFER OF THE DIVISION AS SLUM SALE IN TERMS OF THE PROVISIONS OF SEC. 2(42)(C )OF THE ACT. 2.1 THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS A P RIVATE LIMITED COMPANY AND ENGAGED IN THE MANUFACTURING BUSINESS OF THERMO PLASTIC FILMS, SHEETS AND LINERS. THE ASSESSEE HAD A MANUFACTURING UNIT AT PI THAMPUR, MADHYA PARDESH WHICH IS KNOWN AS BIAX DIVISION UNITS II. THE ASSES SEE SOLD ITS SAID DIVISION TO M/S TERXPRO FILMS PVT. LTD.,(TFPL FOR SHORT) IN TER MS OF AGREEMENT DATED 8 TH OF SEPTEMBER 2004. THE RELEVANT EXTRACT OF THE AGREEME NT ARE REPRODUCED AS UNDER :- CLAUSE 1.8 OF THE AGREEMENT DEFINED BUSINESS AS F OLLOWS :- BUSINESS SHALL MEAN THE BUSINESS OF XPRO OF MANUFACTURING AND SELLING BOPP FILMS CARRIED ON AT AND THROUGH BIAX D IVISION UNIT I, INCLUDING APPROVALS, IMMOVABLE ASSETS, MOVABLE ASSE TS, EMPLOYEES, CONTRACTS, INTELLECTUAL PROPERTY RIGHTS AND PROPERT Y INFORMATION. ACCOUNTS AND FUNDS, SYSTEMS, KNOW-HOW, GOODWILL, BU SINESS RECORDS AND EVERY RELATED, ASSOCIATE OR INCIDENTAL ACTIVITY OF BIAX DIVISION UNIT II AND ALL OTHER RIGHTS OF XPRO IN BIAX DIVISION UNIT II ALONG WITH BENEFITS AND GOODWILL OF THE BUSINESS, WHICH ARE EXISTING AN D WHICH XPRO MAY ACQUIRE IN FUTURE UPTO THE CLOSING DATE, BUT EXCLUDING ALL LOANS AND LIABILITIES OF XPRO WITH RESPECT TO BIAX DIVISION UNIT II . IT IS CLARIFIED THAT INTELLECTUAL PROPERTY RIGHTS AND PROPERTY INFO RMATION, KNOW-HOW AND ITA NO.214/KOL/2011 A.Y. 2005-06 DCIT CIR-11, KOL. V. M/S XPRO INDIA LTD . PAGE 3 MARKET DETAILS RELATING TO PACKAGING AND NON CAPAC ITOR GRADES OF BOPP FILM WOULD NOT FORM PART OF THIS DEFINITION. CLAUSE 3.2 OF THE AGREEMENT SPECIFIED THE CONSIDER ATION FOR THE TRANSFER OF BUSINESS AS FOLLOWS: IN CONSIDERATION FOR THE PURCHASE OF THE BUSINESS FROM XPRO, THE COMPANY SHALL PAY TO XPRO IN CASH RS.275,680,00 0 (RUPEES TWO HUNDRED SEVENTY FIVE MILLIONS SIX HUNDR ED AND EIGHTY THOUSANDS ONLY), EQUAL TO EUROS 4,865,000 (E UROS FOUR MILLION EIGHT HUNDRED AND SIXTY FIVE THOUSAND), PLUS AMOUNT EQUIVALENT TO THE VALUE OF THE CURRENT ASSETS AS ON THE CLOSING DATE (HEREINAFTER REFERRED TO AS PURCHASE PRICE) IN T HE MANNER PROVIDED IN THIS AGREEMENT. THE ASSESSEE SUBMITTED THAT THE DIVISION WAS SOLD W ITHOUT TRANSFERRING THE LOAN LIABILITY OF THE SAID UNIT. THE TRANSFEREE TOO K OVER ONLY SPECIFIED CURRENT ASSETS AFTER THE INSPECTION ALONG WITH THE RELATED CURRENT LIABILITIES AS APPEARING ON CLOSING DATE. ACCORDINGLY THE ASSESSEE CONTINUED TO HOLD THE CURRENT ASSETS AND CURRENT LIABILITIES IN THE BOOKS OF ACCOUNTS NOT TAKEN OVER BY THE TRANSFEREE. IN OTHER WORDS THE ASSESSEE TRANSFE RRED THE LAND, DEPRECIABLE FIXED ASSETS AND SPECIFIED NET CURRENT ASSETS. AS A RESULT OF SALE OF SHORT TERM CAPITAL GAINS (STCG FOR SHORT) WAS OFFERED ON THE T RANSFER OF LAND AND SALE CONSIDERATION OF DEPRECIABLE ASSETS WAS ADJUSTED WI TH THE WDV FOR THE RELEVANT BLOCK OF ASSETS. THE PROFIT AROSE ON THE T RANSFER OF NET CURRENT ASSETS, TAX UNDER THE BUSINESS HEAD WAS OFFERED. IN VIEW OF ABOVE, THE ASSESSEE SUBMITTED THAT THE TRANSACTION OF TRANSFER OF ITS U NDERTAKING WAS OUT OF THE PURVIEW OF SLUMP SALE AND CONSEQUENTLY THE PROVISIO NS OF SEC. 50B OF THE ACT ARE NOT ATTRACTED. HOWEVER, THE AO DISAGREED WITH T HE CLARIFICATION OF THE ASSESSEE, PARTICULARLY FOR CONTENTS OF THE CLAUSE 3 .2 OF THE AGREEMENT, WHICH IS REPRODUCED BELOW:- IN CONSIDERATION FOR THE PURCHASE OF THE BUSINESS FROM XPRO, THE COMPANY SHALL PAY TO XPRO IN CASH RS.275,680,000 (R UPEES TWO HUNDRED SEVENTY FIVE MILLIONS SIX HUNDRED AND EIGHT Y THOUSANDS ONLY) EQUAL TO EUROS 4,865,000(EUROS FOUR MILLION EIGHT H UNDRED AND SIXTY FIVE THOUSAND) PLUS AMOUNT EQUIVALENT TO THE VALUE OF THE CURRENT ASSETS AS ON THE CLOSING DATE (HEREINAFTER REFERRED TO AS PURCHASE PRICE) IN THE MANNER PROVIDED IN THIS AGREEMENT. ITA NO.214/KOL/2011 A.Y. 2005-06 DCIT CIR-11, KOL. V. M/S XPRO INDIA LTD . PAGE 4 AS STATED IN THIS AGREEMENT, XPRO HAS AVAILED OF A LOAN FACILITY FROM UTI (AS DEFINED LATER). AN AMOUNT OF RS.130,000,000 IS PRESENTLY DUE AND PAYABLE BY XPRO TO UTI. PARTIES AGREE THAT TIN DISCHARGE OF XPROS SAID OBLIGATION TO UTI, THE COMPANY SHALL, I F SO REQUESTED B XPRO IN WRITING, DIRECTLY PAY THE SAID AMOUNT OF RS .130,000,000 OR SUCH LESSER AMOUNT AS INDICATED BY XPRO IN THE REQU EST, ON XPROS BEHALF TO UTI. THIS AMOUNT SHALL BE PAYABLE ON CLOS ING DATE IN ACCORDANCE WITH THE PROVISIONS OF CLAUSE 7 HEREOF A ND SUCH PAYMENT SHALL BE DEEMED TO BE PAYMENT MADE BY THE COMPANY T O XPRO TOWARDS PART PURCHASE PRICE. FOR THE SAKE OF CLARIT Y AND REMOVAL OF DOUBT THE VALUE OF CURRENT ASSETS REFERRED TO IN THIS CLAUSE SHALL MEAN AT ACTUAL COST. FOR AVOIDANCE OF DOUBT, IT IS CLARIFIED THAT THE PU RCHASE PRICE STATED IN THIS ARTICLE FORMS THE FULL AND FINAL CONSIDERATION TO BE PAID OR PARTED FROM THE COMPANY TO XPRO UNDER THIS AGREEMENT FOR T HE BUSINESS AND FOR ALL SUBSEQUENT DEEDS, INSTRUMENTS, CONTRACTS OR ACTIONS THAT HAVE OR MAY HAVE TO BE EXECUTED, PERFORMED OR TAKEN BY AND BETWEEN THE PARTIES AND/OR ANY THIRD PARTY IN ORDER TO GIVE COM PLETE EFFECT AND FORCE TO THIS AGREEMENT OR ANY OF THE OBLIGATIONS CONTAIN ED HEREIN. NO FURTHER CONSIDERATION SHALL BE PAID AND/OR BE PAYABLE BY TH E COMPANY. THE PURCHASE PRICE SHALL, AT ALL TIMES, BE THE PAYMENT FOR THE WHOLE OF THE BUSINESS EVEN THOUGH ANY INDIVIDUAL ASSET OR CONSTI TUENT THEREOF IS FOR OTHER PURPOSES SUCH AS STAMP DU9TIES, REGISTRATIONS ETC., VALUED INDIVIDUALLY. ON PERUSAL OF ABOVE MATTER, AO OBSERVED THE FOLLOWI NG FACTS : THAT AS PER THE AGREEMENT THE PARTY IS BUYING ALL THE CURRENT ASSETS OF THE COMPANY AS APPEARING ON THE CLOSING DATE. THAT THE AGREEMENT ALSO SPEAKS FOR THE LOAN LIABILI TY OF UTI BANK EITHER TO ADJUST WITH THE SALE CONSIDERATION OR THE BUYER WILL DIRECTLY MAKE THE PAYMENT OF THE LOAN TO THE BANK. IN VIEW OF ABOVE, THE AO OPINED THAT THE THERE IS A DEEMED TAKEOVER OF THE LIABILITY OF THE UTI BANK EMBODIED IN THE LUMP SUM CONSIDERATION. ACCORDINGLY, THE AO ISSUED A SHOW CAUSE NOTICE TO THE ASSESSEE D ATED 24.12.2007 FOR TREATING THE TRANSFER OF DIVISION AS SLUMP SALE. IN COMPLIANCE THERETO, THE ASSESSEE SUBMITTED THAT THE TRANSACTION FOR TRANSFE RRING THE UNDERTAKING IS NOT COVERED WITHIN THE DEFINITION U/S 2(42C) OF THE ACT AS THE LOANS OF THE ITA NO.214/KOL/2011 A.Y. 2005-06 DCIT CIR-11, KOL. V. M/S XPRO INDIA LTD . PAGE 5 ASSESSEE WERE NOT TRANSFERRED. ALL THE CURRENT ASSE TS WERE NOT TAKEN AND NO CURRENT LIABILITY WAS TAKEN BY THE ASSESSEE. HOWEVER, AO DISREGARDED THE CLAIM OF THE ASSESSEE A ND TREATED THE TRANSACTION OF SALE OF UNDERTAKING AS SLUMP SALE. 3. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE L D. CIT(A). BEFORE LD. CIT(A) ASSESSEE SUBMITTED THAT AS PER THE AGREEMENT ONLY FIXED ASSETS WERE TRANSFERRED ALONG WITH THE SPECIFIED CURRENT ASSETS WITH THE CORRESPONDING LIABILITIES. THE TRANSFEREE HAS NOT TAKEN OVER THE LOAN LIABILITY. ACCORDINGLY THE ASSESSEE CONTENDED THAT THE TRANSACTION DOES NOT AM OUNT TO SLUMP SALE. ACCORDINGLY THE LD. CITA DELETED THE ADDITION MADE BY THE AO ON ACCOUNT OF SLUMP SALE BY OBSERVING AS UNDER:- 8.13 IN THE CASE OF APPELLANT ALSO THE SPECIFIC CO NSIDERATION/VALUE HAS BEEN ASSIGNED TO EACH INDIVIDUAL ASSETS. THE CONSID ERATION FOR THE LAND HAS BEEN SPECIFICALLY MENTIONED AS PER THE VALUERS REPORT. THE APPELLANT HAD NOT TRANSFERRED THE UNDERTAKING WITH ALL THE ASSETS AND LIABILITIES. ALL THE FINANCIAL ASSETS AVAILABLE TO THE APPELLANT UPTO THE DATE OF TRANSACTION WERE NOT TRANSFERRED BUT HAD BEEN RE TAINED BY THE APPELLANT. FURTHER, THE APPELLANT HAD ASSUMED ALL T HE LIABILITIES INCLUDING THE STATUTORY LIABILITIES TILL THE DATE OF TRANSFER . THEREFORE, IT COULD NOT BE SAID THAT THE TRANSFER WAS A SLUMP SALE WITHIN THE MEANING OF SEC. 50B OF THE ACT. IN VIEW OF FACTS IN THE CASE OF APPELLA NT AND IN VIEW OF DECISIONS OF HON'BLE ITAT, KOLKATA AND ITAT, COCHIN , IT IS HELD THAT IN THE CASE OF APPELLANT THERE WAS NO SLUMP SALE OF UN DERTAKING BUT THE ITEMIZED SALE OF ASSETS AND THEREFORE, THE PROVISIO NS OF SEC. 50B ARE NOT APPLICABLE IN THE APPELLANT CASE. THE AO IS DIRECTE D TO COMPUTE THE INCOME OF THE APPELLANT ACCORDINGLY WITHOUT INVOKIN G PROVISIONS OF SEC. 50B OF THE ACT. THE GROUND NO. 1 TO 4 ARE ALLOWED. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) REVENUE IS APPEAL BEFORE US. SHRI D.S.DAMLE, LD. AUTHORIZED REPRESENTATIVE APPEA RING ON BEHALF OF ASSESSEE AND SHRI RADHEY SHYAM, LD. DEPARTMENTAL RE PRESENTATIVE APPEARING ON BEHALF OF REVENUE. ITA NO.214/KOL/2011 A.Y. 2005-06 DCIT CIR-11, KOL. V. M/S XPRO INDIA LTD . PAGE 6 4. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE LD. AR HAS FILED A PAPER BOOK WHICH IS RUNNING PAGES 1 TO 255. THE LEARNED AR BEFORE US SUBMITTED THAT IN SUBSTANC E AND IN REALITY THE ASSESSEE HAS MADE A SALE OF FIXED ASSETS AND THE SP ECIFIED CURRENT ASSETS IN FAVOUR OF TO TREXPRO FOR THE CONSIDERATION AS MUTUA LLY AGREED. THE TRANSACTION WAS DULY RECORDED IN THE BOOKS OF ACCOUNTS AS SALE OF FIXED ASSETS AND SPECIFIED CURRENT ASSETS. THE ACCOUNTS OF THE ASSES SEE WERE DULY AUDITED BY THE QUALIFIED CHARTERED ACCOUNTANT. ACCORDINGLY THE LEARNED AR PLEADED THAT THE TRANSACTION OF SALE OF THE FIXED ASSETS AND CUR RENT ASSETS DOES NOT AMOUNT TO TRANSFER OF BUSINESS UNDERTAKING AS A WHOLE. SO THE PROVISIONS OF SLUMP SALE WILL NOT BE APPLIED IN THE INSTANT CASE. THE L EARNED AR RELIED IN THE ORDER OF THE LEARNED CIT(A). ON THE CONTRARY THE LD. DR V EHEMENTLY SUPPORTED THE ORDER OF AO. FROM THE AFORESAID DISCUSSION WE FIND THAT THE ASSESSEE IN THE PRESENT CASE HAS SORTED FIXED ASSETS AND SPECIFIED CURRENT ASSETS AS APPEARING ON THE CLOSING DATE. THE AO HAS TREATED T HE TRANSACTION AS SLUMP SALE AND WORKED OUT THE CAPITAL GAIN THEREON. HOWEV ER THE LEARNED CIT(A) REVERSED THE ORDER OF THE AO ON THE GROUND THAT ALL THE LOANS AND LIABILITIES WERE NOT TAKEN OVER BY THE TRANSFEREE SO THE TRANSA CTION IS OUT OF THE PURVIEW OF SLUMP SALE. WE, AT THIS JUNCTURE, FIND RELEVANT TO REPRODUCE THE DEFINITION OF SLUMP SALE WHICH IS AS PER SECTION 2(42C) IS AS UND ER:- [42C) SLUMP SALE MEANS THE TRANSFER OF ONE OR MO RE UNDERTAKINGS AS A RESULT OF THE SALE FOR A LUMP SUM CONSIDERATION W ITHOUT VALUES BEING ASSIGNED TO THE INDIVIDUAL ASSETS AND LIABILITIES I N SUCH SALES. EXPLANATION 1. FOR THE PURPOSES OF THIS CLAUSE, UNDERTAKING SHALL HAVE THE MEANING ASSIGNED TO IT IN EXPLANATION 1 TO CLAUSE (19AA). EXPLANATION 2. FOR THE REMOVAL OF DOUBTS, IT IS H EREBY DECLARED THAT THE DETERMINATION OF THE VALUE OF AN ASSET OR LIABI LITY FOR THE SOLE PURPOSE OF PAYMENT OF STAMP DUTY, REGISTRATION FEES OR OTHE R SIMILAR TAXES OR FEES SHALL NOT BE REGARDED AS ASSIGNMENT OF VALUES TO IN DIVIDUAL ASSETS OR LIABILITIES;] EXPLANATION 1 TO SECTION 2(19AA) READS AS UNDER: - DEMERGER IN RELATION TO COMPANIES, MEANS THE TRAN SFER, PURSUANT TO A SCHEME OF ARRANGEMENT UNDER SECTIONS 391 TO 394 OF THE COMPANIES ITA NO.214/KOL/2011 A.Y. 2005-06 DCIT CIR-11, KOL. V. M/S XPRO INDIA LTD . PAGE 7 ACT, 1956 (1 TO 1956), BY A DEMERGED COMPANY OF ITS ONE OR ,MORE UNDERTAKINGS TO ANY RESULTING COMPANY IN SUCH A MAN NER THAT- (I) (II) (III) . (IV) . (V) (VI) . (VII) . EXPLANATION 1, - FOR THE PURPOSES OF THIS CLAUSE, U NDERTAKING SHALL INCLUDE ANY PART OF AN UNDERTAKING, OR A UNIT OR DI VISION OF AN UNDERTAKING OR A BUSINESS ACTIVITY TAKEN AS A WHOLE , BUT DOES NOT INCLUDE INDIVIDUAL ASSETS OR LIABILITIES OR ANY COM BINATION THEREOF NOT CONSTITUTING A BUSINESS ACTIVITY. FROM THE AFORESAID DEFINITION OF SLUMP SALE AND UND ERTAKING, IT IS CLEAR THAT THE PROVISION OF SEC/ 50B OF THE ACT WILL BE ATTRAC TED WHEN AN UNDERTAKING IS TRANSFERRED FOR LUMP SUM CONSIDERATION WITHOUT VALU ES BEING ASSIGNED TO THE INDIVIDUAL ASSETS AND LIABILITIES IN SUCH SALES. IN THE INSTANT CASE THE TRANSFEREE HAS TAKEN OVER ALL FIXED ASSETS, SPECIFIED CURRENT ASSETS AND NOT TAKEN OVER ALL THE LOAN AND LIABILITIES. THEREFORE IN OUR CONSIDER ED VIEW THE TRANSACTION OF SALE OF THE FIXED AND CURRENT ASSETS IS OUT OF THE PURVIEW OF SLUMP SALE AS SPECIFIED UNDER SECTION 50B OF THE ACT. WE ARE ALSO PUTTING OUR RELIANCE IN THE CASE OF DCIT V. TONGANI TEA CO. LTD., (2015) 63 TAXMNN.COM 149 (KOL TRIB.) THE HEAD NOTE READS AS UNDER : SECTION 2(42C), READ WITH SECTION 50B, OF THE INCOM E-TAX ACT, 1961 CAPITAL GAINS SLUMP SALE (MEANING OF) ASSESSMENT YEAR 2000-01 ASSESSEE-COMPANY CARRIED ON BUSINESS OF GROWING AND MANUFACTURE OF TEA IT OWNED TWO TEA GARDENS DURING RELEVANT YE AR, ASSESSEE SOLD ONE TEA ESTATE FOR A TOTAL VALUE OF RS.18 CRORES ASSESSING OFFICER NOTED THAT ASSESSEE COMPANY SOLD ITS ENTIRE TEA ES TATE AS A GOING CONCERN BASIS HE THUS OPINED THAT IT WAS A CASE O F SLUMP SALE ACCORDINGLY, ASSESSING OFFICER ADDED CERTAIN AMOUNT TO ASSESSEES TAXABLE INCOME UNDER SECTION 50B IT WAS NOTED FROM RECORDS THAT ASSESSEE HAD NOT SOLD ALL ASSETS BELONGING TO TEA E STATE MOREOVER, TOTAL CONSIDERATION STIPULATED FOR TRANSFER OF ESTA TE HAD BEEN SPLIT OVER DIFFERENT ASSETS, BOTH MOVABLE AND IMMOVABLE WHET HER ON FACTS, IT WAS NOT A CASE OF SLUMP SALE MERELY FOR REASON THAT TEA ESTATE WAS TRANSFERRED TO BUYER AS GOING CONCERN HELD, YES WHETHER, THEREFORE, ITA NO.214/KOL/2011 A.Y. 2005-06 DCIT CIR-11, KOL. V. M/S XPRO INDIA LTD . PAGE 8 IMPUGNED ADDITION WAS TO BE DELETED HELD, YES [PA RAS 18 AND 20] [IN FAVOUR OF ASSESSEE] RELYING IN THE ABOVE DECISION, WE DO NOT FIND ANY I NFIRMITY IN THE DECISION OF THE LD. CIT(A). HENCE WE DISMISS THE GROUND OF REVE NUES APPEAL. 5. NEXT ISSUE IN THIS APPEAL OF REVENUE IS THAT LD CIT(A) ERRED IN DELETING THE DISALLOWANCE OF RS.2,56,26,930/- BEING THE COMP ENSATION ON ACCOUNT OF MACHINE NOT PERFORMING AT AN AGREED LEVEL. 6. THE ASSESSEE PURCHASED THE PLANT AND MACHINERY F ROM A COMPANY BASED IN UK. THE PLANT AND MACHINERIES WERE NOT FUN CTIONING AS PER THE PERFORMANCE PARAMETERS SET OUT BY THE MACHINE SUPPL IER. SO THE ASSESSEE FILED A CLAIM FOR COMPENSATION ON THE SAID UK COMPA NY IN TERMS OF THE AGREEMENT FOR THE PURCHASE OF PLANT AND MACHINERY. AS A RESULT A SETTLEMENT WAS ARRIVED WITH THE UK COMPANY WITH THE COMPENSATI ON FOR AN AMOUNT OF RS. 2.56 CRORES. DURING THE COURSE OF ASSESSMENT PROCEE DINGS, THE AO FOUND THAT THE ASSESSEE HAS RECEIVED COMPENSATION WHICH WAS SH OWN AS CAPITAL RECEIPT. THE AO ACCORDINGLY SOUGHT CLARIFICATION FROM THE AS SESSEE WHY THE COMPENSATION HAS BEEN CONSIDERED AS CAPITAL RECEIPT AND WHY THE COMPENSATION HAS NOT BEEN REDUCED FROM THE VALUE OF THE SAID PLANT AND MACHINERIES. IN COMPLIANCE TO THE NOTICE THE ASSESS EE SUBMITTED THAT THE COMPENSATION WAS NEITHER IN THE NATURE OF DISCOUNT NOR IT REPRESENTS ANY SUBSIDY IN RELATION TO THE PLANT AND MACHINERY. THE COMPENSATION WAS AWARDED AS THE MACHINE SUPPLIERS FAILURE TO MEET P ERFORMANCE PARAMETERS THEREFORE IT IS CAPITAL IN NATURE. HOWEVER THE AO O BSERVED THAT THERE WAS NO DEFECT IN THE MACHINES. AS PER AGREEMENT WITH M/S B ATTENFELD A UK COMPANY HAS WAIVED 10% OF THE PURCHASE PRICE WHICH WAS THE BALANCE PRICE PAYABLE BY ASSESSEE AND ASSESSEE HAS CAPITALIZED 100% OF VA LUE OF THE MACHINES AND CLAIMED THE DEPRECIATION ON SAME. THE COMPENSA TION WHICH IS RECEIVED BY ASSESSEE IS NOTHING BUT A SPECIFIC AMOUNT WHICH HAS BEEN PAID TO THE ASSESSEE-COMPANY TO MAKE GOOD THE PRICE OF MACHINE WHICH HAS BEEN PAID ITA NO.214/KOL/2011 A.Y. 2005-06 DCIT CIR-11, KOL. V. M/S XPRO INDIA LTD . PAGE 9 BY ASSESSEE TO M/S BATENFELD. THE COMPENSATION RECE IVED BY ASSESSEE IS TOWARDS MITIGATING THE COST OF THE MACHINE WHICH HA S BEEN SUPPLIED TO ASSESSEE AND SAME IS A CAPITAL RECEIPT BUT IT HAS T O BE REDUCED FROM THE COST OF THE MACHINE AS IT HAS BEEN SPECIFICALLY PROVIDED AND COMPENSATED TO ASSESSEE. AFTER CONSIDERING THE SAME, AO RECOMPUTED THE DEPRECIATION @ 25%. 7. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE L D. CIT(A) WHO AFTER CAREFUL CONSIDERATION HELD THAT AO WAS NOT JUSTIFIE D IN HOLDING THAT ENTIRE AMOUNT OF COMPENSATION OF RS.3,52,06,915/- WOULD GO TO REDUCE THE COST OF ACQUISITION OF THE MACHINERY WHICH INCLUDE WAIVER O F 10% OF INVOICE VALUE OF THE MACHINERY. LD. CIT(A) FOUND FORCE IN THE SUBMIS SION OF ASSESSEE THAT COMPENSATION WAS PAID BY M/S BATTENFELD FOR FAILURE TO MEET ITS CAPITAL COMMITMENT AND FOR FAILURE TO DEMONSTRATE THE PREDE TERMINED PERFORMANCE PARAMETERS AND ASSESSEE COULD NOT GET DESIRED QUANT ITY AND QUALITY OF FINISHED PRODUCTS. ACCORDINGLY THE LD. CIT(A) DELET ED THE ADDITION BY OBSERVING AS UNDER:- 11.4 IN THE CASE OF APPELLANT IT HAS RECEIVED THE COMPENSATION/LIQUIDATED DAMAGES FROM BATTENFELD FOR THE REASON THAT THE SUPPLIER COULD NOT DEMONSTRATED FULLY THE PERFO RMANCE PARAMETERS OF THE MACHINERY AS PER THE CONTRACT AND THEREFORE, THE APPELLANT COULD NOT GET DESIRED RESULTS. THE AMOUNT OF COMPENSATION OF EURO 450000 HAS NO CO-RELATION WITH THE ACTUAL COST OF THE MACH INERY. HOWEVER, ON THE OTHER HAND, I AM NOT INCLINED TO AGREE WITH THE SUBMISSION OF THE APPELLANT ALSO THAT ENTIRE AMOUNT OF COMPENSATION I NCLUDING FOREGONE 10% INVOICE VALUE OF MACHINERY WOULD NOT REDUCE THE ACTUAL COST OF THE MACHINERY. THERE IS NO DISPUTE ABOUT THE FACT THAT THE APPELLANT HAD CAPITALIZED THE FULL INVOICE VALUE OF MACHINERY IN ITS BOOKS OF ACCOUNT AND ACCORDINGLY CLAIMED THE DEPRECIATION. BUT THE 1 0% OF INVOICE VALUE WAS PAYABLE BY THE APPELLANT WHICH WAS FOREGONE BY THE UK COMPANY IN TERMS OF SETTLEMENT DEED. THUS, THE 10% OF THE I NVOICE VALUE WHICH WAS NOT PAID BY APPELLANT WOULD DEFINITELY GO TO RE DUCE THE COST OF MACHINERY CAPITALIZED BY THE APPELLANT. IN VIEW OF ABOVE FACTS AND THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF S AURASHTRA CEMENT LTD. (SUPRA), THE AO IS DIRECTED TO RESTRICT THE DI SALLOWANCE OF DEPRECIATION ON RS.95,79,985/- WHICH IS 10% INVOICE VALUE OF THE MACHINERY BY REDUCING THE WDV OF THE MACHINERY. THE COMPENSATION OF RS.2,56,26,93-/- RECEIVED BY THE APPELLANT IS A CAP ITAL RECEIPT WHICH ITA NO.214/KOL/2011 A.Y. 2005-06 DCIT CIR-11, KOL. V. M/S XPRO INDIA LTD . PAGE 10 WOULD NOT REDUCE THE COST OF MACHINERY. THE GROUND NOS. 5,6 AND 7 ARE PARTLY ALLOWED. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) REVENUE IS IN APPEAL BEFORE US. 8. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MAT ERIALS AVAILABLE ON RECORD. BEFORE US THE LD. DR SUBMITTED THAT THAT TH E ASSESSEE IS CLAIMING DOUBLE DEDUCTION BY NOT REDUCING THE COMPENSATION F ROM THE VALUE OF THE MACHINE WHICH IS NOT AS PER LAW AND RELIED IN THE O RDER OF AO. ON THE OTHER HAND THE LEARNED AR SUBMITTED THAT COMPENSATION WAS RECEIVED AS THE MACHINE SUPPLIER FAILED TO MEET THE PREDETERMINED P ERFORMANCE PARAMETERS THEREFORE IT IS A CAPITAL RECEIPT. FROM THE FACTS O F THE CASE OF THE FINDING THAT THE ASSESSEE HAS PURCHASED PLANT AND MACHINERY FROM A COMPANY BASED IN UK WHICH AGREED FOR CERTAIN PERFORMANCE PARAMETER B UT FAILED TO ACHIEVE THE DESIRED LEVEL OF PERFORMANCE. ACCORDINGLY THE UK CO MPANY HAD TO PAY THE COMPENSATION TO THE ASSESSEE IN TERMS OF THE AGREEM ENT. THE AO HAS LINKED COMPENSATION WITH THE COST OF MACHINES AND HELD THA T IT NEEDS TO BE REDUCED FROM THE VALUE OF THE MACHINE. HOWEVER WE FIND FROM THE SETTLEMENT DEED WITH THE UK COMPANY THAT COMPENSATION WAS GIVEN AS THE P ERFORMANCE PARAMETERS WERE NOT ACHIEVED. THE SETTLEMENT DEED I S PLACED ON PAGE NUMBER 193 OF THE PAPER BOOK. THE RELEVANT EXTRACT OF THE SETTLEMENT DEED IS REPRODUCED BELOW :- THIS DEED WITNESSETH 1.1 WITHOUT ACCEPTING THE CONTENTION OF XPRO THAT T HEE IS ANY DEFECT IN THE CO-EXTRUSION FILM MANUFACTURING E QUIPMENT SUPPLIED BY BATTENFELD TO XPRO UNDER THE CONTRACT, BUT IN LIGHT OF THE FACT THAT THE PERFORMANCE PARAMETERS COULD NOT BE DEMONSTRATED, BATTENFELD SHALL PAY A SUM OF 450,000,000 (EURO F OUR HUNDRED AND FIFTY THOUSAND) TO XPRO. FROM THE ABOVE, IT IS CLEAR THAT THE COMPENSATION W AS AWARDED FOR NOT MEETING THE PERFORMANCE PARAMETERS. THE COMPENSATIO N WAS NOT COMPUTED WITH THE REFERENCE TO THE COST OF THE SAID MACHINES . THE COMPENSATION PAID WAS NEITHER IN FORM OF DISCOUNT NOR AGAINST THE PRI CE NOR IT WAS IN THE NATURE OF ITA NO.214/KOL/2011 A.Y. 2005-06 DCIT CIR-11, KOL. V. M/S XPRO INDIA LTD . PAGE 11 SUBSIDY NOR IT WAS IN THE NATURE OF THE REIMBURSEME NT. WE FURTHER FIND THAT IT WAS NOT EVEN COMPENSATION FOR THE RECOUPING THE DAM AGE CAUSED TO THE PLANT AND MACHINERY. NONE OF THE CONDITIONS SPECIFIED IN SEC. 143(1) OF THE ACT FOR DEDUCTING THE ACTUAL COST FROM VALUE OF THE MACHINE S WERE APPLICABLE TO THE COMPENSATION. THEREFORE WE ARE INCLINED NOT TO REDU CE THE ACTUAL COST OF THE PLANT AND MACHINERY BY THE AMOUNT OF COMPENSATION. ACCORDINGLY WE HAVE NO HESITATION IN APPROVING THE ORDER OF THE LD. CIT(A) . HENCE THIS GROUND OF REVENUES APPEAL IS DISMISSED. 9. NEXT GROUND IS THAT LD. CIT(A) ERRED IN ALLOWING THE CLAIM OF ASSESSEES BAD DEBT OF RS.42,50,084/-. 10. THE ASSESSEE DURING THE YEAR HAS WRITTEN OFF BA D DEBTS FOR AN AMOUNT OF RS.42,15,084/- UNDER SECTION 36(2) OF THE ACT. THE BAD DEBTS WERE RELATED TO BIAX DIVISION-II OF THE ASSESSEE WHICH WAS SOLD DUR ING THE YEAR. THEREFORE THE AO OPINED THAT THE TRADE DEBTORS HAS BEEN TAKEN OVE R BY THE TRANSFEREE COMPANY THEN THE QUESTION OF CLAIMING BAD DOES NOT ARISE. THE ASSESSEE IN RESPONSE TO THE NOTICE OF THE AO SUBMITTED THAT AS PER CLAUSE NO. 1.14 OF THE AGREEMENT WITH TERXPRO FILMS PVT. LTD. THE TRADE DE BTORS WERE NOT TAKEN OVER. THE AO DURING ASSESSMENT PROCEEDINGS ALSO ASKED ASS ESSEE TO FURNISH THE DETAILS REGARDING THE YEAR IN WHICH SUCH INCOME WAS OFFERED FOR TAXATION IN EARLIER YEARS. BUT THE ASSESSEE FAILED TO FURNISH T HE INFORMATION AS REQUIRED BY THE AO. ACCORDINGLY THE AO FOUND THAT THE BASIC CON DITION OF SEC. 36(2) OF THE ACT HAS NOT BEEN FULFILLED BY THE ASSESSEE. THEREFO RE THE AO DISALLOWED THE BAD DEBTS WRITTEN OFF AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 11. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A) WHO DELETED THE ADDITION BY OBSERVING AS UNDER:- 14. I HAVE CONSIDERED THE SUBMISSION OF THE APPELL ANT AND PERUSED THE ASSESSMENT ORDER. ON GOING THROUGH THE ASSESSMENT O RDER IT IS APPARENT THAT THE AO HAS MAINLY DISALLOWED THE CLA IM OF BAD DEBT MADE BY THE APPELLANT FOR THE REASON THAT BIAX DIVISION UNIT-II WAS SOLD BY THE ITA NO.214/KOL/2011 A.Y. 2005-06 DCIT CIR-11, KOL. V. M/S XPRO INDIA LTD . PAGE 12 APPELLANT DURING THE YEAR UNDER CONSIDERATION AND T HAT IT WAS NOT KNOWN AS TO IN WHICH YEAR SUCH INCOME WAS OFFERED FOR TAX ATION. ON CAREFUL CONSIDERATION OF THE FACT, I AM OF THE OPINION THAT THERE IS NO DISPUTE ON THE FACT THAT THE DEBTS WRITTEN OFF WAS THE TRADE D EBT OF THE APPELLANTS BIAX DIVISION UNIT-II. THE SAID UNIT WAS PURCHASED BY THE APPELLANT DURING F.Y 2003-04 AND SOLD IN F.Y 2004-05. THUS, T HE TRADE DEBTOR WOULD BE OF THE YEAR 2003-04 OR 2004-05. THERE IS A LSO NO DISPUTE ON THE FACT THAT THE DEBT WAS ACTUALLY WRITTEN OFF IN THE BOOKS OF ACCOUNT IN THE YEAR UNDER CONSIDERATION. THE APPELLANT HAS ALS O DEMONSTRATED THAT AS PER THE BUSINESS TRANSFER AGREEMENT, THE SUNDRY DEBTORS, AS ON THE DATE OF TRANSFER, WERE NOT TRANSFERRED TO THE JOINT VENTURE COMPANY. UNDER THE CIRCUMSTANCES, I AM OF THE OPINION THAT T HERE IS NO REASON TO REJECT THE CLAIM OF BAD DEBTS MADE BY THE APPELLANT WHEN THE CONDITIONS U/S. 36(1)(VII) READ WITH SEC. 36(2) OF THE ACT ARE SATISFIED. MOREOVER, THE APPELLANT WAS ABLE TO RECOVER THE DEBT WRITTEN OFF IN THE SUBSEQUENT YEA AND OFFERED IT AS INCOME FOR A.Y 2006-07. IN VI EW OF ABOVE IT IS HELD THAT THE AO WAS NOT JUSTIFIED IN DISALLOWING THE CL AIM OF BAD DEBTS. THE AO IS DIRECTED TO ALLOW APPELLANTS CLAIM. THE GROU ND NOS. 8 AND 9 ARE ALLOWED. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) REVENUE IS IN APPEAL BEFORE US. THE LD. DR RELIED IN THE DECISION OF AO AND ON THE OTHER HAND THE LD. AR RELIED ON THE DECISION OF THE LEARNED CIT(A). 12. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. FROM THE AFORESAID DISCUSSION WE FIND THAT THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS APPREHENDED THAT THE BAD DEB TS CLAIMED BY THE ASSESSEE WERE ACTUALLY TRANSFERRED TO THE TRANSFERE E. THEREFORE THE QUESTION OF CLAIMING THE BAD DEBTS DOES NOT ARISE. HOWEVER T HE ASSESSEE SUBMITTED BEFORE US THAT AS PER THE AGREEMENT WITH THE TRANSF EREE THE DEBTOR FOR NOT TRANSFERRED AND THE RELEVANT EXTRACT OF THE AGREEME NT IS REPRODUCED BELOW: 1.14 CURRENT ASSETS SHALL MEANS ALL CURRENT ASSE TS RELATING TO THE BUSINESS INCLUDING INVENTORIES, STORES AND SPARES ( NOT BEING MACHINERY SPARES OF THE NATURE OF CAPITAL SPARES OR INSURANCE SPARES, AS DEFINED IN THE INDIAN ACCOUNTING STANDARDS) EXCEPT WORK-IN-PRO GRESS AND CASH AND BANK BALANCES, STATUTORY DEPOSITS, EMPLOYEE ADV ANCES, PRE-PAID EXPENSES ETC., EXCLUDING SUNDRY DEBTORS AND RECEIVA BLES, AGREED TO BE TAKEN OVER BY THE COMPANY FROM XPRO AS PART OF NET CURRENT ASSETS, AS ON THE CLOSING DATE, FREE FROM ALL ENCUMBRANCES; ITA NO.214/KOL/2011 A.Y. 2005-06 DCIT CIR-11, KOL. V. M/S XPRO INDIA LTD . PAGE 13 THE AO ALSO CONTENDED THAT THE ASSESSEE FAILED TO F URNISH THE DETAILS OF THE YEARS IN WHICH THE SUNDRY DEBTORS WERE TAKEN INTO I NCOME. HOWEVER FROM THE ORDER OF LEARNED CIT(A) WE FIND THAT THE BAD DEBTS CLAIMED BY THE ASSESSEE IN THE YEAR UNDER CONSIDERATION WERE RECOVERED IN THE SUBSEQUENT AY 2006-07 AND OFFERED FOR TAXATION. THE LD. DR COULD NOT BRIN G ANYTHING ON RECORD CONTRARY TO THE FINDING OF THE LEARNED CIT(A). THER EFORE, IN OUR OPINION, THAT THE DEBTORS SHOWN BY THE ASSESSEE WERE THE GENUINE. IN THIS VIEW OF THE MATTER, WE DISMISS THE GROUND RAISED BY REVENUE. 13. LAST GROUND RAISED BY REVENUE IN THIS APPEAL IS THAT LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF AO BY DISALLOWING A SUM OF 50,289/- U/S 43B OF THE ACT FOR DELAY IN DEPOSIT OF PF AND ESI CONTRIBUTION S. 14. WE FIND THAT THE AO HAS MADE THE ADDITION OF TH E AMOUNT OF THE EMPLOYEE CONTRIBUTION AS THERE WAS A SMALL DELAY IN PAYMENT TO PF AUTHORITIES. HOWEVER FROM THE ASSESSMENT ORDER WE FIND THAT ALL THE PAYMENT OF EMPLOYEES CONTRIBUTION WERE MADE BEFORE THE DUE DAT E OF FILING OF INCOME TAX RETURN AS SPECIFIED U/S.139(1) OF THE ACT. NOW, TH IS ISSUE STANDS COVERED IN FAVOUR OF ASSESSEE AND AGAINST THE REVENUE BY THE D ECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. M/S VIJAY SHREE LIMITED VIDE ITAT NO.245 OF 2011 IN GA NO.2607 OF 2011 DATED 7 TH SEPTEMBER, 2011, WHEREIN IT HAS BEEN HELD AS UNDER:- AFTER HEARING MR. SINHA, LEARNED ADVOCATE, APPEARI NG ON BEHALF OF THE APPELLANT AND AFTER GOING THROUGH THE DECISION OF T HE SUPREME COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. ALOM EXTRUSION LTD. , WE FIND THAT THE SUPREME COURT IN THE AFORESAID CASE H AS HELD THAT THE AMENDMENT TO THE SECOND PROVISO TO THE SEC. 43(B) O F THE INCOME TAX ACT, AS INTRODUCED BY FINANCE ACT, 2003, WAS CURATI VE IN NATURE AND IS REQUIRED TO BE APPLIED RETROSPECTIVELY WITH EFFECT FROM 1 ST APRIL, 1988. SUCH BEING THE POSITION, THE DELETION OF THE AMOUNT PAID BY THE EMPLOYEES CONTRIBUTION BEYOND DUE DATE WAS DEDUCTI BLE BY INVOKING THE AFORESAID AMENDED PROVISIONS OF SECTION 43(B) O F THE ACT. ITA NO.214/KOL/2011 A.Y. 2005-06 DCIT CIR-11, KOL. V. M/S XPRO INDIA LTD . PAGE 14 WE, THEREFORE, FIND THAT NO SUBSTANTIAL QUESTION OF LAW IS INVOLVED IN THIS APPEAL AND CONSEQUENTLY, WE DISMISS THIS APPEAL. FROM THE ABOVE, WE FIND THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF ASSESSEE AND AGAINST THE REVENUE BY THE JURISDICTIO NAL HIGH COURT IN THE CASE OF M/S VIJAY SHREE LIMITED (SUPRA). AS THE ISSUE IS COVERED, HENCE, WE DISMISSED REVENUES GROUND. 15. IN THE RESULT, REVENUES APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 23/ 03/2016 SD/- SD/- (N.V.VASUDEVAN) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP !- 23 / 03 /201 6 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-DCIT, CIRCLE-11, P7, CHOWRIGHEE SQUARE, KOLKATA-700 069 2. /RESPONDENT-M/S XPRO INDIA LTD., BIRLA BUILDING, 2 ND FLOOR, 9/1, R.N. MUKHERJEE ROAD, KOLKATA-7 00 001 3. ) *+, , - / CONCERNED CIT KOLKATA 4. , , -- / CIT (A) KOLKATA 5.01233*+, , *+ , / DR, ITAT, KOLKATA 6.26789 / GUARD FILE. BY ORDER/ ,, /TRUE COPY/ / , *+ ,