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3. At the outset, we may mention that the Learned Counsel for the Assessee has restricted himself to the issue regarding computation of capital gain Under Section 50B by not seriously challenging the contention taken before the lower authorities to the effect that in the absence of any cost computation provisions fails. So, he proceeded on the footing that cement division as such amounted to capital asset and profit arising from sale of such unit would be taxable as per the special provisions of Section 50B of the Act. Accordingly, it was contended that Section 50B, being special provision, would apply in the present case and normal procedure for computing capital gain in respect of other assets would not apply. He then took us through the provisions of Section 50B and pointed out that as per Sub-section (2), "net worth" of the undertaking or division shall be deemed to be the cost of acquisition and the cost of improvement for the purposes of Sections 48 and 49 and the provisions contained in the second proviso to Section 48 are to be ignored. He then pointed out that "net worth" has been defined in Explanation-1 which provides that it shall be the aggregate value of the assets of the undertaking or the division as reduced by the value of liabilities of such undertaking or division as appearing in the books of accounts. He then drew our attention to Explanation-2 which provides mechanism for adopting the value of assets. According to this Explanation, depreciable assets are to be valued at written down value as per Section 43(6)(c) of the Act and non depreciable assets are to be valued as per book value. He then pointed out that as per Balance Sheet of the division, there was positive net worth but because of value of depreciable assets at written down value, its net worth has been worked out in negative.

6. Rival submissions have been considered carefully. At the outset, it may be mentioned that provisions of Section 50B were inserted in the Act by Finance Act, 1999 with effect from 1.4.2000. Prior to it, there were disputes as to (i) whether, transfer of business/an undertaking / division, etc., by way of slump sale constituted transfer of capital asset and (ii) whether, there was any cost of acquisition of such business / undertaking/division. The Jurisdictional High Court, in the case of Premier Automobile Ltd., 264 ITR 193, has held that assessee is liable to tax under the head "capital gains" on the transfer of an undertaking by way of slump sale. After insertion of Section 50B in the Act, profits on transfer of such asset is chargeable to tax under the head "Capital Gains" and cost of acquisition for the purpose of Section 48 would be the net worth as computed under the provisions of Section 50B. In view of this legal position, the Learned Counsel for the Assessee, perhaps, has not seriously challenged this aspect of the matter though raised before the lower authorities. Accordingly, we hold and proceed on the footing that profit arising on the transfer of cement division by way of slump sale is chargeable to tax under the head "Capital Gain".

8. The question for our consideration is whether "net worth" so computed can be in negative so as to increase the sale consideration by such negative figure of "net worth" for computing capital gain. In other words, can the capital gain be more than the sale consideration received by the assessee. In our humble opinion, the answer is in negative for the reasons given hereafter. Firstly, capital gain is always a portion of sale consideration and, therefore, portion can never be higher than the whole. Gain would arise only where sale consideration is more than the cost. By no stretch of imagination, it can be said that capital gain would be more than the sale consideration. No man of prudence can ever think of capital gain higher than the sale consideration. Capital gain can either be excess of sale consideration over the cost or "Nil" if sale consideration is equal to cost. Where the cost is more than sale consideration, it would be a case of loss. No other situation can be visualized. Therefore, capital gain can never be more than the sale consideration. Secondly, the legislature has used the expression "net worth" which by deeming fiction is to be considered as cost of acquisition and cost of improvement for the purpose of computing capital gain Under Section 48. Section 48 of the Act provides for deduction of cost of acquisition/improvement from the full value of consideration received or accruing as a result of transfer of capital asset. The cost of a property, as per dictionary meaning, means the price paid by a buyer to the seller. Therefore, it must be a positive figure. That is why the legislature has provided for deduction of cost from sale consideration. Similarly, the word "worth", as per dictionary meaning, also means value of goods or asset or property, which also suggests positivity. No person would buy any property which is worthless. Further, the word "worth" is qualified by the word "net" which would mean the net value of the property which is being sold or purchased. At best, value of the property can be "Nil" but in our opinion, there is no concept of negativity with reference to the expressions "net worth" or "cost of acquisition". Thirdly, had the legislature also intended negative cost of acquisition, it would have used the words "by deducting from or adding to, as the case may be" in Section 48 of the Act instead of the words "by deducting from" actually used by it. The language used by legislature in Section 48, thus, itself shows that it never intended negative cost of acquisition. Since "net wroth" in Section 50B is deemed to be the cost of acquisition as per Sub-section (2) thereof, it must also have been intended by the legislature in positive. Therefore, the expression "reduced by" used by the legislature in Explanation-1 to Section 50B, in our opinion, has been used in the sense that net worth should be arrived at positive figure or at best be reduced to "Nil". Consequently, where the liabilities are more, then the value of assets as computed Under Section 50B, the net worth, in our opinion, would be considered as "Nil"

10. Coming to the contention of Mr. Dave, the next question for our consideration is whether the amount of consideration received by the assessee should be increased by the amount of liabilities of the cement division for ascertaining the full value of consideration in view of the judgment of the Hon'ble Supreme Court in the case of CIT v. Attili N. Rao 255 ITR 860. In our opinion, such contention cannot be accepted for the reasons given hereafter. Firstly, it was never the case of Assessing Officer or the Learned CIT (A). Secondly, no additional ground has been raised by the Revenue. Thirdly, even assuming that Revenue can raise such plea to support the conclusion of the Assessing Officer, we do not find merit in such plea of Mr. Dave. No doubt, the judgment of Apex Court would have supported Mr. Dave, but for the special provisions of Section 50B of the Act. Where an asset is saddled with liability then there are two ways for considering the value of liability while computing the capital gain. Firstly, sale consideration should be increased to the net amount realised by the vendor, as held by the Apex Court in the aforesaid case. Secondly, the value of liability can be deducted from the value of assets while determining the cost of acquisition as provided in Section 50B. The legislature, in its wisdom, having opted for the second option, it is not open now for the Revenue to contend that such liability should again be added to the sale consideration realised by the Vendor. If liability is to be added to the sale consideration then, the same has also to be excluded from the computation of "net worth" since otherwise it would amount to double jeopardy. Such process would amount to rewriting of the provisions of Section 50B which is not permissible in law since such process is within the exclusive domain of the legislature. Therefore, considering the scheme of Section 50B, the judgment of the Apex Court cannot be applied to the present case.