2016 (10) TMI 57 - AT - Income Tax

Tribunal Upholds Capital Gains Classification in Slump Sale

M/s. Sella Synergy India Pvt. Ltd. Versus The Deputy Commissioner of Income Tax Vice-Versa And Banca Sella Versus The Deputy Commissioner of Income tax, International Taxation

The Tribunal upheld the classification of the sale consideration as 'Capital Gains' rather than 'Business Income' in a slump sale transaction. It ... TPA - Treatment to sale consideration - receipt in the nature of non-compete fee or slump sale - capital gain OR business income - Held that:- On perusal of the terms and provisions of software and business transfer agreements referred by the ld. Assessing Officer in the Draft assessment order and agreement of sale the consideration payable, prime facie is slump sale and such transactions cannot be considered as a non compete fee chargeable to tax. Further, the amendment of Sec. 28(va) of the Act was made to tax the non compete fee received from assessment Year 2003-04. Therefore the provision of non compete fee terminology cannot be accepted and we dismiss the ground of the Revenue and upheld the findings of the ld. DRP in treating as income from Capital Gains. Valuation method - TPA - arms length price - Held that:- the assessee has transferred its business operations in India to Banca Sella S.P.A. having its branch in India. - the business transfer are not covered under Rule 10AB. - TPO directed to eliminate the upward adjustment on Business value transferred to the Associated Enterprise. TPO adjustment on sale of software services business to the Associated Enterprise - Held that:- software services remained in India before the transfer and after transfer and both transfer took place within India and there is no evasion of tax and TPO provision are not applicable. - In respect of TPO adjustments on sale of software services business, the ld. TPO does not have powers to make upward adjustment. Issues Involved:1. Classification of sale consideration as 'Capital Gains' vs. 'Business Income'.2. Treatment of personnel as assets in the business transfer.3. Existence of non-competition element in the transaction.4. Applicability of Transfer Pricing provisions and valuation methods.5. Comparability of companies for Transfer Pricing analysis.Detailed Analysis:1. Classification of Sale Consideration:The Revenue contended that the sale consideration of Rs. 49,98,97,967 should be treated as 'Business Income' rather than 'Capital Gains'. The Dispute Resolution Panel (DRP) directed the Assessing Officer (AO) to assess the entire sale consideration under 'Capital Gains' as per Section 50B of the Income Tax Act, 1961. The Tribunal upheld the DRP's decision, stating that the transaction was a slump sale and not a non-compete fee, thus taxable under 'Capital Gains'. The Tribunal emphasized that there were no explicit non-competition clauses in the agreement, and the entire business, including infrastructure and decision-making power, was transferred to the Associated Enterprise (AE).2. Treatment of Personnel as Assets:The Revenue argued that personnel cannot be treated as assets under Section 2(14) of the Act and that the valuation of personnel separately contradicts the provisions of Section 2(42C). The Tribunal dismissed this argument, noting that the business transfer included all assets, liabilities, and employees, and the transaction was rightly considered a slump sale.3. Existence of Non-Competition Element:The Revenue claimed that the transaction included a non-competition element, making the non-compete fee taxable under Section 28(va) of the Act. The Tribunal rejected this claim, stating that the transfer agreement did not include any non-competition clauses and that the assessee could no longer carry on the business after transferring all its assets and infrastructure to the AE.4. Applicability of Transfer Pricing Provisions:The assessee argued that the Transfer Pricing provisions were not applicable as the transaction was a capital receipt and not taxable. The Tribunal found that the Transfer Pricing Officer (TPO) made an upward adjustment towards the business value transferred to the AE. However, the Tribunal directed the TPO to eliminate this adjustment, as the provisions determining Arm's Length Price under Rule 10AB were not applicable for the relevant assessment year.5. Comparability of Companies for Transfer Pricing Analysis:The Tribunal addressed the comparability of various companies used by the TPO for Transfer Pricing analysis. It excluded companies like Kals Information Systems Ltd, Spry Resources India Pvt. Ltd, ICRA Techno Analytics Ltd, and FCS Software Solutions Ltd from the comparables list due to functional differences and lack of segmental data. The Tribunal directed the TPO to include Quintegra Solutions Ltd as a comparable, noting that its exclusion was not factually correct.Separate Judgments:The Tribunal delivered a common order for the cross-appeals and cross-objection, addressing each issue comprehensively and providing detailed reasoning for its decisions.Conclusion:The Tribunal dismissed the Revenue's appeal, partly allowed the assessee's cross-objection and appeals, and directed the TPO to reconsider the comparables and adjustments in line with its findings. The Tribunal emphasized the correct classification of the sale consideration under 'Capital Gains' and the proper application of Transfer Pricing provisions.