Allowing the appeal of the assessee the Tribunal held that ,a transaction by which an undertaking is transferred in consideration of the allotment of shares is an “exchange” and not a “sale”. The fact that the agreement refers to the parties as “seller” and “purchaser” is irrelevant. S. 2(42C) and S. 50B apply only to “sale” and not to “exchange”. As there is no estoppel against a statute, an assessee is entitled to raise the claim regarding non-taxability at any stage of the proceedings .( ITA No. 2913/Mum/2015, dt. 16.05.2018)(AY. 2007-08)
Oricon Enterprises Limited v. ACIT ( Mum)(Trib), www.itatonline.org
S.45: Capital gains- Exchange -Slump sale -A transaction by which an undertaking is transferred in consideration of the allottment of shares is an “exchange” and not a “sale”. The fact that the agreement refers to the parties as “seller” and “purchaser” is irrelevant. S. 2(42C) and S. 50B apply only to “sale” and not to “exchange”. As there is no estoppel against a statute, an assessee is entitled to raise the claim regarding non-taxability at any stage of the proceedings [ S.2(42C), 50B ]