Sum not paid to assessee due to non-fulfilment of certain condition not to be added in total consideration
a) Assessee sold a port terminal owned by it to its subsidiary, KCPL as a going concern on slump sale basis for consideration of Rs. 25.50 crores.
b) As per sale agreement, KCPL would retain Rs. 5 crores out of total sale consideration and same would be paid to assessee only on assessee obtaining waiver of Minimum Guarantee Throughput (MGT) from Port Trust till transfer of terminal undertaking by assessee to KCPL.
c) Assessee contended that sum of Rs. 5 crores retained by KCPL was never paid to it because assessee could not get waiver of MGT from Port Trust; therefore, sum of Rs. 5 crores should not be treated as part of full consideration received on transfer.
d) However, Assessing Officer (AO) was of view that as per agreement, sale consideration agreed between parties was Rs. 25.50 crores and that could not be altered.
The ITAT held in favour of assessee as under:
1) It was noted that a reading of slump sale agreement clearly showed that if assessee did not get waiver of MGT from Port Trust then assessee would not be in a position to claim sum equivalent to amount due as MGT to Port Trust which was sum of Rs. 5 crores.
2) Therefore, it would be unfair to treat sum of Rs. 5 crores as part of total sale consideration received by assessee for slump sale.  98 taxmann.com308 (Bangalore – Trib.)