Slump sale and S. 50B

1.2 These provisions are introduced by the Finance Act, 1999
w.e.f. 1-4-2000 to put to rest the serious doubts prevailing for long about the
taxability or otherwise of gains in slump sale of business on a going concern
basis.

1.3 The newly introduced provisions besides providing for the
taxability of such gains provide for the detailed mechanism for determination of
the period of holding and the computation of capital gains.

1.4 The doubts about the taxability of gains in slump sale
for the period up to A.Y. 1999-2000 continue to persist with the views with
equal force persisting. While some Benches of the Tribunal have favoured the
taxability, others have exempted the gains form the ambit of taxation.

1.5 As if the above-referred controversy was in-sufficient, a
new controversy has arisen about the applicability of the newly inserted
provisions to the pending assessments. A recent decision of one of the Benches
of the Tribunal has taken a view conflicting with the prevailing view that the
said provisions were prospective in nature.

2. Asea Brown Boveri Ltd.’s case :

2.1 In the case of ACIT v. Asea Brown Boveri Ltd., 110
TTJ 502 (Mum.), the Tribunal was concerned with the issue as to whether the
transaction in question was a slump sale or an itemised sale. It was also
concerned about the taxability or otherwise of the gains arising on transfer of
a business in a slump sale. Though the Tribunal in this case had held that the
impugned transaction did not amount to slump sale, it was felt necessary to deal
with the issue of taxability of profits or gains if the impugned transaction was
held to be a slump sale without prejudice to the aforesaid finding.

2.2 The Tribunal for the reasons recorded in their order held
that profit arising on slump sale was taxable, as it was possible to compute the
capital gains including the cost of acquisition in some manner and the limited
question before them was about the mode of computation to be adopted for working
out the profits/gains from the slump sale. The Tribunal noted that there were
two provisions which were relevant in this behalf : (i) the provisions of S.
50B, which were specific to the computation of capital in case of slump sales,
and (ii) the general provisions of S. 45, which were applicable in the absence
of special procedure prescribed in S. 50B.

2.3 On applicability of S. 50B, the Revenue submitted that
once the transaction was held to be a slump sale, the taxability of the profits
and gains arising on such sale had to be brought to tax u/s.50B of the IT Act,
as the said S. 50B, being a procedural and computational provision, was
retroactive in its operation and therefore should govern all the pending
proceedings. Against the contentions of the Revenue, the assessee, on the other
hand, contended that S. 50B did not have retrospective operation and hence the
taxability of profits/gains from a slump sale could not be considered u/s.50B
which Section was operative from A.Y. 2000-01, only.

2.4 The Tribunal after taking note of the several
provisions including that of S. 2(42C) and S. 2(19AA) confirmed that S. 50B had
been inserted in the IT Act by the Finance Act, 1999 w.e.f. 1st April 2000 and
was applicable w.e.f. A.Y. 2000-01, while the appeal before them related to A.Y.
1997-98 and accordingly the newly inserted provisions were not available on the
statute book for the assessment year under appeal. This fact however did not
deter the Tribunal to apply the said provisions of S. 50B, as in their opinion
the concept of slump sale which hitherto judicially recognised was now been
codified and inserted in the form of clause (42C) in S. 2 of the IT Act; that
what was earlier the judge-made law was now a codified law; the Bombay High
Court in the case of Premier Automobiles Ltd. v. ITO, 264 ITR 193 held
that the concept of slump sale initially evolved under judge-made law was
subsequently recognised by the Legislature by inserting S. 2(42C); that
insertion of the new provisions was nothing but codification of what was
hitherto judicially recognised and S. 2(42C) was nothing but declaration of the
existing law of slump sale.

2.5 The Tribunal further noted that the Court in the said
case was concerned with the A.Y. 1995-96 when S. 50B was not in existence and
still the Court accepted that profits and gains arising on slump sale were
taxable, which in the opinion of the Tribunal showed that it had always been the
law that profits and gains from slump sale were taxable; the natural corollary
to the said decision was that the provisions of S. 50B(1) declaring that any
profit or gain arising from the slump sale would be chargeable to tax as capital
gains, was merely declaratory of the law as it then existed.

2.6 The Tribunal also proceeded to answer the obvious question as to what was the necessity of en-acting S. 50B when it was merely declaratory of the existing law. The Tribunal observed that the answer to that question lay in the provisions of Ss.(2) and Ss.(3) of S. 50B, which provided for the mechanism for the computation of cost of acquisition and the cost of improvement. It noted that the absence of any statutory mode of computation of cost of acquisition/improvement, difficulties were being experienced in the computation of capital gains arising from the slump sale, which were resolved by introduction of S. 50B; the heading of S. 50B which read: “Special provision for computation of capital gains in case of slump sale” clarified that S. 50B dealt with computation of capital gains in cases of slump sale; while Ss.(l) of S. 50B declared the existing law and thus put the same beyond the pale of any doubt, Ss.(2) and Ss.(3) thereof merely laid down the machinery for computation of capital gains from slump sale.

2.7 The Tribunal  proceeded to examine whether the computational provisions in S. 50B(2) and (3), enacted to provide simplicity, uniformity and certainty, the three pillars of taxation for the computation of capital gains, were retroactive or not. In order to answer this question, the Tribunal referred to the decision of the Supreme Court in CWT v. Sharvan Kumar Swarup & Sons, 210 ITR 886 (SC), wherein it had been held that machinery provisions, which provide for the machinery for the quantification of the charge, were procedural provisions and therefore would have retroactive operation and apply to all pending proceedings. Ss.(2) and Ss.(3) of S. 50B are thus procedural provisions inasmuch as they have been enacted to quantify and thereby simplify the procedure for computation of cost of acquisition/improvement in cases of slump sale. Based on the aforesaid findings, the Tribunal held that the provisions of S. 50B(2) and (3) were machinery provisions and hence would have retroactive operation and apply to all pending matters.

2.8 In deciding the issue the Tribunal also rejected the plea of the assessee that S. 50B could not have retroactive operation as it would mean, by the same logic, that the amendments made in S. 55(2)(a) deeming the cost of acquisition of certain assets to be nil would equally have retroactive operation. The assessee for this contention had relied on CIT v. D.P. Sandu Brothers Chembur (P) Ltd., 273 ITR 1, wherein it was held that the amendments to S. 55(2)(a) -(., deeming the cost of acquisition of a tenancy right to be nil had only prospective effect and not retrospective effect. The aforesaid decision was found to be rendered in the context of the provisions of S. 55(2)(a), which deemed the cost of acquisition of tenancy right to be nil and not in the context of S. 50B(2) and (3) which merely simplified and standardised the procedure for computation of cost of acquisition/improvement in cases of slump sale.

3. Sankheya Chemicals’ case:

3.1 In Sankheya Chemicals Ltd. v. ACIT, 8 SOT 50 (Mum.), the Chemical Division of the assessee-company was sold as a going concern on 1st April, 1990 for a lump sum price of Rs.20 lakhs. The said business consisted of the leasehold rights of the land, factory building, plant and machinery and electrical installation which was transferred to the subsidiary company, along with other assets and liabilities including transfer of raw material and other licences, etc.

3.2 The same Mumbai Tribunal was inter alia asked to consider whether provisions of S. 50B were retroactive in its operation so as to bring within its net the gains of transfer of a business for a slump consideration prior to introduction of S. 50B.

3.3 Taking into consideration the facts of the case in totality, the Tribunal held that no tax was exigible to the gains arising on the transfer of the business undertaking as a going concern by the assessee-company and the gains on such transfer were not includible in the hands of the assessee as income from short-term capital gains by relying on Coromandel Fertilisers Ltd. v. DCIT, 90 ITD 344 (Hyd.). The Tribunal also noted that S. SOBof the IT Act was introduced w.e.f. 1st April 2000 and in the facts of the present case, the business undertaking was sold on 1st April 1990, i.e., prior to the introduction of the provisions of S. SOBof the IT Act.

3.4 The Mumbai Tribunal in this case noted with approval the decision of the Hyderabad Bench in the case of Coromandel Fertilizers Ltd. (supra) which held as under:  “……S. 50 and S. SOB are mutually exclusive.  In other  words,  S. 50B is attracted when  there  is a slump  sale and  S. 50 is attracted when  there is an itemised  sale. S. SOBwas not applicable  for the assessment  year  in question,  as it had no retrospective  operation.  So, the position that emerged  was that what  was transferred  by the assessee was the cement  unit as a going  concern  for a lump sum price, and so, the sale in question  was a slump  sale, and so, S. 50 was not attracted,  (para 34)…..  “

Observations:

4.1 With utmost respect for the Bench of the Tribunal delivering the decision in the case of Asea Brown Boveri’s case, it is to be noted that the Tribunal erred in not appreciating the correct ratio of the Bombay High Court’s decision in the case of Premier Automobiles Ltd. The Court in that case while deciding the appeal in favour of the assessee had nowhere directly or indirectly stated that the provisions of S. SOB were retrospective in its operation. The Coud was only asked to decide whether the transfer in the said case was a slump sale or an itemised sale. This is clear from p. 235 of the said report as under : “In this appeal, we were only required to consider whether the transaction was a slump sale and having come to the conclusion that there was a sale of business as a whole, we have to remand the matter back to the AO to compute the quantum of capital gains. For that purpose, the AO will have to decide the cost of the undertaking for the purposes of the computing capital gains that may arise on transfer. That, the AO will also be required to decide its value u/ s.55 of the IT Act. Further, the AO will be required to decide on what basis indexation should be allowed in computing the capital gains and the quantum thereof. Lastly, the AO,will be required to decide the quantum of depreciation on the block of assets. It may be mentioned that these parameters which we have mentioned are not exhaustive. They are some of the parameters under the Act.” In fact, the Court only directed the authorities to compute gains if that was possible and nothing beyond that. The Court in that case was not concerned with the issue as to whether there at all arose any taxable capital gains on slump sale.

4.2 The Tribunal itself noted with approval that in Premier Automobiles case (supra) the Court had left the issue of working out the cost of acquisition to the AO with the observations, which even the Tribunal found to be quite significant. It further ob-served that “the Hon’ble jurisdictional High Court in the aforesaid case has not excluded the applicability of the parameters prescribed in S. 50B(2) and for computing the cost of acquisition/improvements in cases of slump sale”. This observation makes it clear that the Bombay High Court nowhere confirmed the applicability of the said provisions.

4.3 Thus, contrary to what has been stated by the Tribunal, we do not find that the said decision of the Tribunal was in conformity with the decision of the Bombay High Court in Premier Automobiles case in-asmuch as the issue adjudicated by the Tribunal was never before the High Court in the said case.

4.4 The Supreme Court in Sandu Bros. (supra) was asked to examine whether the provisions of S. 55 providing for adoption of Nil cost in case of tenancy was retrospective and was applicable to assessment years prior to AY. 1995-96. The Supreme Court after analysing the facts and the law held that the said provisions had only prospective application. The issue before the Tribunal in Asea Borwn Boveri’s case was largely similar and the assessee was right in relying on the said decision to support its case that provisions of S. SOBwere not to apply retroactively.

4.5 The Tribunal itself noted that the provisions of S. SO Band Ss.(l) in particular had the effect of removing existing anomaly about the taxation of gains on slump sale. This finding of the Tribunal confirmed that the new provision created a specific charge on such gains for the first time by providing the elaborate mechanism for making the said charge effective. The definitions of the terms ‘slump sale’, ‘undertaking’ and ‘net worth’ give a fresh meaning to the understanding of the said terms and therefore make it all the more difficult to support the Tribunal’s view that the newly inserted provisions are retroactive. Even the Legislature has nowhere expressed that the provisions were clarificatory, leave alone retroactive. Neither the provisions, nor the notes on clauses and the memorandum explaining the provisions as also the Circular following the insertion make such a claim.

4.6 The issue was examined by the Hyderabad Bench in the case of Coromandel Fertilizers Ltd. (supra), which clearly held that the provisions of S. 50Bwere not retrospective or retroactive. This decision was followed by the Mumbai Bench in the Sankheya Chemicals’ case (supra), which sadly was not taken note of.

4.7 The better view is that S. SOB should be applied prospectively and not retrospectively. The issue however calls for adjudication by the Special Bench of the Tribunal in view of the cleavage of the opinions amongst the Benches.