Emil Pharmaceutical Industries Private Limited Vs DCIT (ITAT Mumbai)
In this case learned CIT(A) has noted that the assessee has not produced supporting documents such as the list of employees at the time of the sale, electricity bills and other details necessary to establish the existence of an undertaking in a continuous business. Furthermore, we note that learned counsel has produced before us valuation report giving valuation of the items sold. This is additional evidence not produced before the authorities below. We note that this additional evidence in the shape of valuation report itself states that as the assessee’s unit was established in a delayed manner and it was no longer eligible for incentives available there. The valuer himself states that there are no comparative sales instances. The said report while discussing fair market rate has clearly mentioned that “we find that there was no buyer for industrial unit, not eligible for incentive.” This amply casts doubt over the claim of the assessee that this was slump sale of an undertaking. It is settled law that assessee cannot be allowed to take shifting stands while it is claiming that is a sale of an undertaking it is giving evidence that there cannot be a buyer for such unit. In our considered opinion, since the authorities below have not examined this additional evidence, we deem it appropriate to remit this issue also to the file of the Assessing Officer. The Assessing Officer shall examine this issue afresh after taking into account additional evidence. The assessee is directed to produce necessary evidence in support of the claim that it was an ongoing concern.
FULL TEXT OF THE ORDER OF ITAT MUMBAI
This appeal by the assessee is directed against the order of learned CIT(A) dated 29.3.2019 pertaining to assessment year 2014-15.
2. The grounds of appeal read as under :
1) In the proceeding u/s 143(3) of the Act, the Ld AO as well as CIT (A) erred in adding a sum Rs.2,38,58,286/- as long term capital gain for sale of property.
2) Ld. A.O as well as CIT (A) erred in denying the slum sales of the appellant and consider the sale transaction under the head long term capital gain and accordingly added a sum of Rs.2,38,58,286/-.
3) The Ld CIT(A) is erred in not appreciating the fact that the appellant company had 2 going concern units and all the details were already filed before the Ld AO.
4) Ld. A.O as well as CIT(A) erred in applying sec 50C of the I.T. Act on sale of going concern unit of appellant under the provision of slum sale.
5) The Appellant prays to delete the addition made on this account.
3. Brief facts of the case as under :
During the previous year 2013-14, the assessee sold its unit at Roorkee comprising of land, building and plant & machinery for a consideration of Rs. 1,72,00,000/-. As per sale deed, the Stamp Valuation Authority valued the Land, RCC building and the compound wall as under:-
