DCIT 7(1), MUMBAI V. PIRAMAL HEALTHCARE P.LTD, MUMBAI

ITA 70/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88110 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-01-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 01-01-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 03-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R N DSOUZA
• Assessee Lawyers: RONAK G DOSHI
• Keywords: Reopening of assessment; Business income; Depreciation; Period of limitation; Difference of opinion; Time period of passing order; Unabsorbed depreciation; Change of opinion
• Section: 143(3); 115JB

Judgement Text

, , , , , ,, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C, MUMBAI . . , ! '# , $ BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO.70/MUM/2013 ASSESSMENT YEAR: 2005-06 DCIT , CIRCLE-7(1), ROOM NO.622, AAYKAR BHAVAN M.K.ROAD, CHURCHGATE MUMBAI-400020 / VS. M/S PIRAMAL HEALTHCARE PVT. LTD. NOW KNOWN AS M/S PIRAMAL ENTERPRISES LTD. 8 TH FLOOR, PIRAMAL TOWER, GANPATRAO KADAM MARG, LOWER PAREL, MUMBAI - 400013 ( '# / REVENUE) ( ()* /ASSESSEE) P.A. NO.AAACB9806C '# + , + , + , + , / REVENUE BY SHRI R.N. DSOUZA - DR ()* + , + , + , + , / // / ASSESSEE BY): SHRI RONAK G. DOSHI + *-! / / / / DATE OF HEARING : 27/01/2015 '. '. '. '. + *-! / DATE OF ORDER : 04/02/2015 '. '. '. '. / / / / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) : THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DATE D 17/10/2012 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI, ON THE GROUND THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) M/S PIRAMAL HEALTHCARE PVT. LTD . . 2 ERRED ON FACTS AND IN LAW, IN HOLDING THAT REOPENIN G WAS MADE ON THE BASIS OF MATERIAL AVAILABLE ON RECORD, WHICH WAS DULY CONSIDERED BY THE ASSESSING OFFICER WHILE COMPLETIN G THE ORIGINAL ASSESSMENT AND THUS THE LD. COMMISSIONER O F INCOME TAX (APPEALS) EXTENDED THE SCOPE OF CHANGE OF OPIN ION IN A CASE WHERE NO OPINION WAS FORMED BY THE ASSESSING O FFICER IGNORING THE CASE OF M/S USHA ENGINEERING LTD. AND FURTHER TREATING THE PROFIT ON TRANSFER OF HEALTH CARE DIVI SION AND GYMNASIUM DIVISION AS LONG TERM CAPITAL GAIN ON ACC OUNT OF SLUMP SALE U/S 50B OF THE ACT, WITHOUT APPRECIATING THE FACT THAT THERE WAS ONLY TRANSFER OF ASSET WITHOUT TRANS FERRING LIABILITIES AS HELD BY THE ASSESSING OFFICER. 2. DURING HEARING OF THIS APPEAL, THE LD. DR SHRI R.N. DSOUZA, ADVANCED HIS ARGUMENTS WHICH ARE IDENTICAL TO THE GROUND RAISED. THE LD. DR ALSO RELIED UPON THE DEC ISION IN PIAGGIO VEHICLES P. LTD. 290 ITR 377 (BOM) AND I.P. PATEL & COMPANY VS DCIT 54 DTR 291(GUJ.). IT WAS ALSO PL EADED THAT CONFUSION AROSE DUE TO DECLARATION MADE BY THE ASSESSEE FOR WHICH OUR ATTENTION WAS INVITED TO PAGE 3 (PARA 4.3) OF THE ASSESSMENT ORDER. IT WAS PLEADED THAT THE LD. COMM ISSIONER OF INCOME TAX (APPEALS) HAS EXTENDED THE SCOPE OF CHA NGE OF OPINION WHEN NO OPINION WAS FORMED BY THE ASSESSIN G OFFICER, THUS, REOPENING WAS OUTSIDE THE SCOPE WITHOUT APPRE CIATING THE RATIO LAID DOWN IN M/S USHA ENGINEERING LTD. IT WAS ASSERTED THAT THE LD. COMMISSIONER OF INCOME TAX (A PPEALS) DID NOT APPRECIATE IN TREATING THE PROFIT ON TRANSFER O F HEALTH CARE M/S PIRAMAL HEALTHCARE PVT. LTD . . 3 DIVISION AND GYMNASIUM DIVISION AS LONG TERM CAPITA L GAIN ON ACCOUNT OF SLUMP SALE U/S 50B OF THE ACT. 2.1. ON THE OTHER HAND, THE LD. COUNSEL FOR THE AS SESSEE, SHRI RONAK G. DOSHI, DEFENDED THE CONCLUSION ARRIVE D AT IN THE IMPUGNED ORDER BY CONTENDING THAT FIRSTLY THE REOPE NING IS BEYOND FOUR YEARS AND SECONDLY, THE NECESSARY DETAI LS WERE DULY FURNISHED BY THE ASSESSEE FOR WHICH OUR ATTENT ION WAS INVITED TO VARIOUS PAGES OF THE PAPER BOOK. PLEA W AS ALSO RAISED THAT IN EARLIER YEARS, THE CLAIM OF THE ASSE SSEE HAS BEEN ACCEPTED AS BUSINESS INCOME. 2.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE IS ENGAGED IN PROVIDING AMBUL ATORY HEALTH CARE SERVICES IN THE NAME OF WELLSPRING HOSP ITALS. IT PROVIDES AMBULATORY CARE FACILITIES FOR MEDICAL CON SULTATION TO GENERAL PHYSICIANS, CONSULTING PHYSICIANS, GENERAL PRACTITIONERS, CARDIOLOGISTS, GYNECOLOGISTS, PEDIAT RICIANS, DENTISTS, ETC. THE ASSESSEE ALSO OFFERS MODERN AND TECHNOLOGICALLY ADVANCED FACILITIES FOR DIAGNOSTICS , PATHOLOGY, AND RADIOLOGY. THE ASSESSEE DECLARED TOTAL INCOME OF RS.2,78,64,407/- IN ITS RETURN FILED ON 31/10/2005 UNDER PROVISION OF SECTION 115JB OF THE INCOME TAX ACT, 1961(HEREINAFTER THE ACT). THE CASE OF THE ASSESSE E WAS SELECTED FOR SCRUTINY AND THUS THE ASSESSING OFFICE R FRAMED ASSESSMENT U/S 143(3) OF THE ACT VIDE ORDER DATED 31/12/2007. THEREAFTER, THE ASSESSING OFFICER REOPE NED THE ASSESSMENT U/S 147/148 OF THE ACT BY ALLEGING THAT M/S PIRAMAL HEALTHCARE PVT. LTD . . 4 A) THE LONG TERM CAPITAL GAIN ON TRANSFER OF HEALTH CARE BUSINESS AND GYMNASIUM DIVISION AS SLUMP SALE U/S 50B BE TREATED AS SHORT TERM CAPITAL GAIN U/S 5 0 OF THE ACT AS THE ASSESSEE TRANSFERRED ONLY DEPRECIABL E ASSETS OF THE HEALTH CARE DIVISION. B) THAT THE SERVICE CENTRE RECEIPT AND HIGHER CHARG ES OF AUDITORIUM BE TREATED AS INCOME FROM HOUSE PROPERTY INSTEAD OF INCOME FROM BUSINESS AND PROFESSION AS TREATED BY THE ASSESSEE. C) THAT THE ASSESSEE HAD SET OFF EXCESS BROUGHT FORWARD UNABSORBED DEPRECIATION AND THEREFORE, THUS THE INCOME ESCAPED ASSESSMENT 2.3. NOW, WE SHALL EXAMINE WHETHER THE INCOME ESCA PED ASSESSMENT AND ALSO WHETHER THE REOPENING WAS DONE BEYOND THE LIMITATION PERIOD OF FOUR YEARS. THE ASSESSING OFFICER SET OUT THREE REASONS FOR REOPENING AS MENTIONED EARLIE R IN PARA 2.2 OF THIS ORDER. THE STAND OF THE ASSESSEE IS TH AT FULL AND TRUE DISCLOSURE OF MATERIAL FACTS/INCOME WAS MADE B Y THE ASSESSEE IN ITS RETURN. WHEREAS, THE ASSERTIONS MA DE BY THE REVENUE/LD. DR IS THAT THERE IS NO MENTION OF TRANS FER OF LIABILITIES AND ONLY ASSET WAS TRANSFERRED. WE SHAL L EXAMINE BOTH THESE VERSIONS. WE FIND THAT THE ASSESSEE OF FERED LONG TERM CAPITAL GAIN FROM SLUMP SALE ON TRANSFER OF HE ALTH CARE DIVISION. THE ASSESSEE THROUGH ITS COMPUTATION OF I NCOME AND IN FORM 10ECB DISCLOSED ALL MATERIAL FACT WERE DULY DISCLOSED IN ITS RETURN. THERE WAS NO NEW INFORMATION/MATERI AL, FOUND BY THE ASSESSING OFFICER, AFTER COMPLETION OF ASSES SMENT U/S M/S PIRAMAL HEALTHCARE PVT. LTD . . 5 143(3) OF THE ACT. WE HAVE PERUSED AND CONSIDERED THE MATERIAL AVAILABLE ON RECORD. THE PAPER BOOK (RUNNI NG INTO 101 PAGES) WHICH WAS MADE AVAILABLE BEFORE THE ASSESSIN G OFFICER AS WELL AS BEFORE THE CIT(A) AND ALSO FILED BEFORE US. THE MAIN GRIEVANCE OF THE ASSESSING OFFICER IS THAT WHILE TR ANSFERRING THE ASSET LIABILITIES WERE NOT TRANSFERRED. AS IS EVID ENT FROM DETAILS OF DEPRECIATION (PAGE-34) OF THE PAPER BOOK THE WDV OF SLUMP SALE IS RS.71,52,054/- AND AS PER NOTES FORMING PAR TS OF ACCOUNTS/CONTINGENT LIABILITIES (PAGE-25 OF THE PAP ER BOOK), THE ASSETS WERE TRANSFERRED ALONG WITH LIABILITIES, WE ARE REPRODUCING HEREUNDER THE RELEVANT PORTION:- RS. IN LAKH PARTICULARS AS ON 31 ST MARCH 2005 AS ON 31 ST MARCH 2005 FOR THE YEAR LIABILITIES ACCELERATED TOTAL ASSETS UNABSORBED DEPRECIATION UNABSORBED BUSINESS LOSS PROVISION FOR BONUS PROVISION FOR GRATUITY PROVISION FOR LEAVE ENCASHMENT SHORT TERM LOSS TOTAL 116.04 116.04 _ _ 0.16 0.21 0.16 - 0.53 141.07 141.07 182.71 12.84 0.64 - 0.69 0.28 197.16 (25.04) (25.04) (182.71) (12.84) (0.47) 0.21 (0.53) (0.28) (196.63) NET DTA/(DTL) (115.51) 56.09 (171.59) THE COMPANY HAS SOLD HEALTHCARE BUSINESS TO NPIL LAB & DIAGNOSTICS PVT. LTD. FOR A CONSIDERATION OF RS.4 CRORES AND DIALYSIS BUSINESS TO GOPIKRISHNA PIRAMAL MEMORIAL HOSPITAL FOR A CONSIDERATION OF RS.25 LAKH S AS ON 01/04/2004. THE COMPANY HAS ALSO SOLD GYMNASIUM BUSINESS TO PIRAMYD RETAIL & M/S PIRAMAL HEALTHCARE PVT. LTD . . 6 MERCHANDISING PVT. LTD. FOR RS.35 LAKHS AS ON 16TH DECEMBER 2004 RESPECTIVELY. THE SALE OF THE BUSINE SS WILL NOT HAVE ANY IMPACT ON THE GOING CONCERN STATU S OF THE COMPANY. THE COMPANY HAS TRANSFERRED THE SERVICE CENTRE BUSINESS, ON A SLUMP SALE BASIS, INCLUDING ALL ASSETS AND LIABILITIES PERTAINING TO SUCH BUSINESS TO ALPEX INTERNATIONAL LIMITED FOR A LUMP SUM CONSIDERATION OF RUPEES 3.59 LAKHS, ON JULY 1, 2005 . IN VIEW OF THE ABOVE, CONTRARY TO ASSERTION OF THE LD. DR, IT CAN BE SAID THAT LIABILITIES WERE ALSO TRANSFERRED ALON G WITH ASSET. WE HAVE PERUSED AND CONSIDERED THE MATERIAL AVAILAB LE ON RECORD. THE AGREEMENT TO SALE (PAGES 40 TO 53 OF TH E PAPER BOOK). AS PER CLAUSE E OF THE AGREEMENT, THE VENDO R HAS AGREED TO SALE/TRANSFERRED AND THE PURCHASER HAD AG REED TO BUY/ACQUIRE THE MEDICAL SERVICES OF THE VENDOR TOGE THER WITH ITS ASSETS, DEBTS AND LIABILITIES AS GOING CONCERN ON SLUMP SALE BASIS WITH EFFECT FROM THE APPOINTED DATE FOR A CONSIDERATION AND ON THE TERMS AND CONDITIONS HEREI NAFTER SET OUT. THEREFORE, FROM THE AGREEMENT ALSO, WHICH IS DULY SIGNED BY ALL THE CONCERNED PARTIES, THE CONTENTION OF THE LD. DR/ASSESSING OFFICER IS NOT SUBSTANTIATED. AT PAGE 60 OF THE PAPER BOOK (AGREEMENT), THERE IS A CLEAR MENTION OF GYMNASIUM BUSINESS ALONG WITH LIABILITIES (CLAUSE 1.3) AND CLAUSE 5 AND 6 OF THE AGREEMENT (PAGE-59 OF THE PAP ER BOOK) THEREFORE, THE CONTENTION OF THE LD. DR THAT THERE IS NO MENTION OF THE GYMNASIUM BUSINESS IS ALSO CONTRARY TO FACTS . THE CASE OF THE ASSESSEE IS FURTHER FORTIFIED THAT VALUE OF LIABILITIES M/S PIRAMAL HEALTHCARE PVT. LTD . . 7 RELATABLE TO THE UNDERTAKING/DIVISION AS APPEAL IN THE BOOKS OF ACCOUNTS IS RS.7,97,156/- (PARA-6 (D) PAGE-39 OF TH E PAPER BOOK). THUS, THE BASIS OF REASONS ON WHICH REOPENIN G WAS DONE BY THE ASSESSING OFFICER IS MERELY ON THE BASI S OF CHANGE OF OPINION AND NO NEW MATERIAL CAME TO HIS KNOWLEDG E AND THE LATER STAGE AS THE MATERIAL FACTS/DETAILS WERE VERY MUCH AVAILABLE WITH HIM WHILE FRAMING THE ORIGINAL ASSES SMENT U/S 143(3) OF THE ACT. THE TOTALITY OF FACTS CLEARLY I NDICATE THAT DURING ORIGINAL ASSESSMENT STAGE, THE ASSESSEE MADE A FULL AND TRUE DISCLOSURE OF INCOME WHILE FILING THE RETURN A ND NO NEW INFORMATION/MATERIAL CAME TO THE NOTICE OF THE ASSE SSING OFFICER AFTER COMPLETION OF ORIGINAL ASSESSMENT, TH EREFORE, THE REASONS FOR REOPENING IS MERELY A CHANGE OF OPINION , WHICH IS NOT PERMISSIBLE UNDER THE LAW. 2.4. IN CIT VS KELVINATOR OF INDIA LTD. (256 ITR 1)(DEL.)(FB), IT WAS HELD THAT THE ACT DOES NOT CON FER POWER TO THE ASSESSING OFFICER TO INITIATE REASSESSMENT PRO CEEDINGS MERELY ON THE BASIS OF CHANGE OF OPINION WHICH WAS AFFIRMED BY HONBLE APEX COURT IN 320 ITR 561 (SC). IDENTIC AL RATIO WAS LAID DOWN IN INFOTECH LTD. VS ACIT (192 TAXMAN 137)(BOM.), CARTINI INDIA LTD. VS ACIT (314 ITR 275 ) (BOM.), BHOR INDUSTRIES VS ACIT (267 ITR 161) (BOM.), GRIND WELL NORTON LTD. VS ACIT (267 ITR 673), ICICI BANK LTD. K.J. RAO AND ORS, (268 ITR 203)(BOM.), HINDUSTAN PETROLEUM CORPORATION LTD VS DCIT (192 TAXMAN 178)(BOM.) AND INDIAN OIL CORPORATION LTD. VS DCIT (194 TAXMAN 398)(BOM.) . THE ASSESSEE TRANSFERRED THE ENTIRE HEALTH CARE DIVISIO N AND GYMNASIUM DIVISION WITH ITS ALL ASSETS, DEBTS, SUND RY CREDITORS M/S PIRAMAL HEALTHCARE PVT. LTD . . 8 AND LIABILITIES, THUS, IN THE LIGHT OF THE AFOREMEN TIONED JUDICIAL PRONOUNCEMENTS MORE SPECIFICALLY FROM HONBLE JURIS DICTIONAL HIGH COURT/HONBLE APEX COURT, WE FIND NO MERIT IN THE OPINION OF THE ASSESSING OFFICER AND ALSO ASSERTION S OF LD. DR. THUS, THE OPINION OF THE ASSESSING OFFICER IS NOT W ITHIN THE FRAMEWORK OF LAW. 2.5. THE CASE FROM HONBLE KERALA HIGH COURT IN CI T VS ACCELERATED FREEZE DRYING CO. LTD. (198 TAXMAN 18)( KER.), WHEREIN THERE WAS A SALE OF AN INDUSTRIAL UNDERTAKI NG AS A WHOLE WHICH INCLUDES LAND, BUILDING, MACHINERY, EQU IPMENT, ETC, AS A GOING CONCERN, WITH FULL ASSET AND LIABIL ITIES WAS HELD TO BE ASSESSABLE U/S 50B TREATING THE SAME AS SLUMP SALE. IDENTICAL RATIO WAS LAID DOWN IN CIT VS CHEMICAL IN DUSTRIES CONSULTING BUREAU (51 DTR 283)(KAR.), DUCHEM LABORA TORIES LTD. VS ACIT (32 SOT 183)(BOM.) AND VST INDUSTRIES LTD. VS ACIT (41 SOT 415)(HYD.). IN THE ABSENCE OF REASON T O BELIEVE, THE REOPENING WAS HELD TO BE BAD IN LAW BY THE HON BLE JURISDICTIONAL HIGH COURT IN PRASHANT S. JOSHI VS I TO AND ORS (2010) 324 ITR 154 (BOM.) IN THE ABSENCE OF NEW TAN GIBLE MATERIAL AGAIN REOPENING ON THE SAME MATERIAL WAS H ELD TO BE BAD IN LAW BY HONBLE DELHI HIGH COURT IN MADHUKAR KHOSLA VS ACIT (WRIT PETITION NO.1320 OF 2014) SINCE, THE COMPLETE INFORMATION/DETAILS (DULY FILED BY THE ASSESSEE) WE RE AVAILABLE WITH THE ASSESSING OFFICER WHILE FRAMING THE ORIGIN AL ASSESSMENT AND NO NEW MATERIAL CAME TO LIGHT AT THE LATER STAGE, THEREFORE, REOPENING OF ASSESSMENT THAT TO W HICH WAS FRAMED U/S 143(3) OF THE ACT, THUS, THE LATER DECIS ION TO REOPEN M/S PIRAMAL HEALTHCARE PVT. LTD . . 9 THE SAME WAS MERELY A CHANGE OF OPINION, WHICH IS N OT PERMISSIBLE WITHIN THE FOUR CORNERS OF THE STATUTE. 2.6. SO FAR AS, TREATMENT OF PROFIT ON SALE OF HEA LTH CARE AND GYMNASIUM DIVISION AS LONG TERM CAPITAL GAIN ON ACCOUNT OF SLUMP SALE U/S 50B OF THE ACT IS CONCERNED, THE DECISION IN COROMANDEL FERTILIZERS LTD. VS DCIT (2004)(90 ITD 3 44)(HYD.), SANKEYA CHEMICALS (P.) LTD. VS ACIT (2006) (8 SOT 5 0) (BOM.TRIBUNAL), ECE INDUSTRIES LTD. VS DCIT (15 SOT 671)(DEL. TRIBUNAL), PREMIER AUTOMOBILES LTD. VS IT O(264 ITR 193)(BOM.) SUPPORTS THE CASE OF THE ASSESSEE. 2.7. WE HAVE PERUSED THE REASONS RECORDED BY THE ASSESSING OFFICER FOR REOPENING THE ASSESSMENT (PAG ES 5 & 6 OF THE PAPER BOOK). IF THESE REASONS ARE ANALYZED WIT H RESPECT TO MATERIAL AVAILABLE ON RECORD, WE FIND THAT THESE RE ASONS ARE ITSELF DEMOLISHES BECAUSE ENOUGH MATERIAL WAS ALREA DY AVAILABLE WITH THE ASSESSING OFFICER (DULY FILED BY THE ASSESSEE BEFORE FINALIZATION OF ORIGINAL ASSESSMENT) AND NO NEW MATERIAL CAME TO HIS NOTICE AT THE LATER STAGE, THEREFORE, I T WAS MERELY A CHANGE OF OPINION WITHOUT APPLICATION OF MIND, AS W E HAVE DISCUSSED IN PRECEDING PARAS OF THIS ORDER. OUR VI EW IS FURTHER FORTIFIED BY THE RATIO LAID DOWN BY HONBLE JURISDI CTIONAL HIGH COURT IN KIMPLAS TRENTON FITTINGS LTD. VS ACIT (201 1) 16 TAXMAN.COM 413 (BOM.) BECAUSE ASSESSEE HAS DISCLOSE D ON PRIMARY FACTS FOR MAKING CLAIM BEFORE THE ASSESSING OFFICER DURING ORIGINAL ASSESSMENT PROCEEDINGS. 2.8. EVEN OTHERWISE, REOPENING OF COMPLETED ASSESS MENT WAS DONE BY THE ASSESSING OFFICER AFTER THE PRESCRI BED LIMIT OF M/S PIRAMAL HEALTHCARE PVT. LTD . . 10 FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. THUS, IN VIEW OF THE AFORESAID DECISION IN 16 TAXMA N.COM 413 (BOM.), CIT VS PETROLEUM INDIA INTERNATIONAL (2013) 40 TAXMAN.COM 243 (BOM.), RATIO LAID DOWN IN GLOBAL SI GNAL CABLES (INDIA) PVT. LTD. VS DCIT (WP)(C) 747/2014 O RDER DATED 17/10/2014 BY HONBLE DELHI HIGH COURT, TALATI & PA NTHAKY ASSOCIATED (P.) LTD. VS DCIT (2014) 51 TAXMAN.COM 2 06 : 362 ITR 362 (BOM.), WHEREIN, IT WAS HELD THAT REOPENIN G OF ASSESSMENT AFTER FOUR YEARS WOULD BE UNSUSTAINABLE, SUPPORTS THE CASE OF THE ASSESSEE. SO FAR AS, THE DECISION IN THE CASE OF PIAGGIO VEHICLES P. LTD. VS DCIT (2007) 290 ITR 377 (BOM.), RELIED UPON BY LD. DR, IS CONCERNED, WE FIND THAT T HERE WAS FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE MAT ERIAL FACTS WHICH WERE NECESSARY FOR ASSESSMENT AND IN VIEW OF CONTRADICTION DISCOVERED SUBSEQUENTLY BETWEEN TAX A UDIT REPORT AND RETURN OF INCOME REGARDING DATE OF ACQUI SITION OF GOODWILL, IN THAT SITUATION THE HONBLE HIGH COURT HELD THE REASSESSMENT AS VALID, THEREFORE, THIS DECISION BEI NG ON DIFFERENT FACT MAY NOT HELP THE REVENUE. IDENTICAL IS THE SITUATION IN THE CASE OF I.P. PATEL & COMPANY (SUPR A) RELIED UPON BY THE REVENUE. 2.9. TOTALITY OF FACTS, CLEARLY INDICATES THAT THE LD. ASSESSING OFFICER HAS NOT CONSIDERED OTHER CLAUSES OF THE AGREEMENTS FROM WHICH CLEARLY OOZES OUT THAT IT WAS A COMPLETE SALE OF BUSINESS AS A GOING CONCERN ALONG WITH LIABILITIES. THE ASSESSING OFFICER HAS MERELY RELI ED UPON THE REPORT OF THE AUDITOR. WE HAVE PERUSED THE AUDIT R EPORT AND FINDS THAT EVEN IN THE REPORT, THE AUDITOR HAS CLEA RLY MENTION M/S PIRAMAL HEALTHCARE PVT. LTD . . 11 THAT IT WAS TRANSFER OF BUSINESS ON SLUMP SALE ALON G WITH LIABILITIES, THUS, THE BASIS OF REOPENING BY THE AS SESSING OFFICER IS ITSELF CONTRARY TO FACTS, RATHER THE ENTIRETY OF FACTS SHOWS THAT IT WAS A SALE OF BUSINESS AS GOING CONCERN ON SLUMP SALE BASIS, CONSEQUENTLY, THE PROFIT WAS RIGHTLY SHOWN A S LONG TERM CAPITAL GAIN U/S 50B OF THE ACT. IN VIEW OF THESE FACTS AND THE JUDICIAL PRONOUNCEMENTS DISCUSSED IN EARLIER PARAS OF THIS ORDER, THE STAND OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DESERVES TO BE UPHELD. FINALLY, THE APPEAL OF THE REVENUE IS DISMISSED THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 27/01/2015. SD/ - (N.K.BILLAIYA) SD/ - (JOGINDER SINGH) ! '# ! '# ! '# ! '# / ACCOUNTANT MEMBER '# '# '# '# / JUDICIAL MEMBER MUMBAI; /' DATED : 04/02/201 5 F{X~{T? P.S/. .. '. + 0* 12* '. + 0* 12* '. + 0* 12* '. + 0* 12*/ COPY OF THE ORDER FORWARDED TO : 1. 34 / THE APPELLANT 2. 0534 / THE RESPONDENT. 3. 6 ( ) / THE CIT, MUMBAI. 4. 6 / CIT(A)- , MUMBAI 5. 89 0* , , / DR, ITAT, MUMBAI 6. 9:( ; / GUARD FILE. '. '. '. '. / BY ORDER, 5* 0* //TRUE COPY// < <<