JUDGMENT N. Kumar , J.—The Revenue has preferred this appeal challenging the order passed by the Tribunal granting relief to the assessee on two counts. The assessee is carrying on the business in the manufacture and trading of industrial and medical gases. In respect of the assessment year 2000-01 the assessee filed a return of income. The assessing officer took up the matter for scrutiny. The assessee had transferred In favour of M/s. Praxair India Private Ltd., as per an agreement entered into on 23rd September, 1999, 25,000 cylinders for a sum of Rs. 3,10,75,000/- the business, pending contract and goodwill for a sum of Rs. 2,02,25,000/- and a Non-compete obligation for a sum of Rs. 2,02,00,000/-. The assessing officer proceeded to hold that a sum of Rs. 2,02,25,000/- cannot be treated as a capital receipt but should be treated as a revenue receipt and brought to tax under the head "Profit and Gains of Business. Further, the non-compete consideration amount of Rs. 2,02,000/- was also treated as the income of the assessee and brought to tax under the head "Profit and Gains of Business." Further, the assessee had incurred a loss of Rs. 8,84,485/- in trading in shares. This was disallowed by the assessing officer by invoking the explanation to Section 73 of the Act as the same amounted to speculative loss. The assessments were completed and an order came to be passed on 27-3-2003. The assessee preferred an appeal to the Commissioner of Income Tax (Appeals). The appellate authority held Rs. 2,02,00,000/- the consideration paid for non-competing fee cannot be treated as a revenue receipt and therefore it cannot be assessed as the income of the assessee under the head "Profits and Gains of Business" as it should be treated as a capital receipt and on that score granted the relief. However, on the other two Counts the order passed by the assessing authority was confirmed. Aggrieved by the said order the assessee preferred an appeal to the Tribunal. The Tribunal held that a sum of Rs. 2,02,25,000/- has to be treated as a capital receipt and therefore it cannot be brought to tax under the heading "Profits and Gains of business. It also held that the loss incurred on sale of shares would not fall within the explanation to Section 73 of the Act and the same cannot be disallowed. 2,02,25,000/- has to be treated as a capital receipt and therefore it cannot be brought to tax under the heading "Profits and Gains of business. It also held that the loss incurred on sale of shares would not fall within the explanation to Section 73 of the Act and the same cannot be disallowed. Therefore the assessee received a lump sum amount for transferring the dealership network; brand image and other marketing infrastructure. Besides the assessee had also agreed not to carry on competing business for a period of 10 years. Therefore the amount paid is for consideration for impairment of profit making apparatus of the assessee and for sterilization of the very source of its income. Therefore, the amount received was a capital receipt. In those circumstances as the amount of Rs. 2,02,25,000/- received is in the nature of capital receipt it could not be assessed as a revenue receipt. Aggrieved by these two findings the Revenue has preferred this appeal. 2. The appeal was admitted on 25-6-2007 to consider the following two substantial questions of law:- (1) Whether the Tribunal was right in proceeding to hold that a sum of Rs. 2,02,25,000/-paid by M/s. Praxair Limited for transfer of the assessees business (other than capital assets for which a separate sum of Rs. 3,10,75,000/-) should be treated as a capital receipt as held by the Assessing Officers and confirmed by the Appellate Commissioner ? (2) Whether the Tribunal was right in holding that the loss incurred in the sale of shares of Rs. 8,85,485/- cannot be treated as speculative loss in accordance with explanation to section 73 of the Act as held by the Assessing Officer and confirmed by the Appellate Commissioner ? 3. We have heard the learned counsel appearing for the parties. 4. The assessing authority held that if the entire agreement is read as a whole there is no transfer of Goodwill at all. The acquirer has not acquired the business name/brand name which are the main ingredients of Goodwill. While selling the products that is industrial gases M/s. Proxair the acquirer uses its own name which incidentally is one of the largest manufacturer and distributor of industrial/medical gas in the world. M/s. Praxair does not use the name of the assessee Company at all. So there is no question of transfer of Goodwill. The Company and its name as such remains with the promoters/Company. M/s. Praxair does not use the name of the assessee Company at all. So there is no question of transfer of Goodwill. The Company and its name as such remains with the promoters/Company. By mere inclusion in the recitals that the Goodwill has also been assigned, does not result in transfer of Goodwill of the business. Thus, when there is no transfer of goodwill at all, there cannot be any consideration attributable to such non-existing transactions. In this context it is necessary to see the term in the agreement-dealing with the goodwill. It is found at para 4.1 The consideration payable by PRAXAIR to AIGL, subject to the adjustments, as are provided elsewhere in this Agreement, is estimated by the parties as an amount of Rs. 7,15,00,000/-(Rupees Seven crores fifteen lakhs) comprising of Rs. 2,02,25,000/- (Rupees Two crores two lakhs and twenty five thousand only) for the sale, transfer and assignment of the said Business and the said Network and the benefits and obligations of the Pending Contracts and all the business and commercial rights associated with or embedded therein and for all the goodwill pertaining thereto. 5. Therefore, the consideration of Rs. 2,02,25,000/- is not the consideration paid for transfer of any goodwill. The said consideration is paid for sale, transfer and assigning the business, the network and benefits and obligations of pending contracts of the business and commercial rights associated with or embedded therein. These are the properties owned by AIGL. It is that property which is transferred for consideration of Rs. 2,02,25,000/-. In the aforesaid Clause having set out the particulars of the properties, the rights which are transferred in the end as a residuary, it is stated that all the goodwill pertaining thereon. Now the finding by the Assessing Officer is there is no goodwill. Therefore consideration paid is not for the goodwill but it is for the assets, properties and rights of the transferor. Consequently if that is so, for transfer of capital asset no tax is payable. This is what precisely the Tribunal has held. In that view of the matter the said substantial question of law is answered in favour of the assessee and against the Revenue. Consequently if that is so, for transfer of capital asset no tax is payable. This is what precisely the Tribunal has held. In that view of the matter the said substantial question of law is answered in favour of the assessee and against the Revenue. Explanation to Section 73 of the Income Tax Act reads as under:- Where any part of the business of a company (other than a company whose goods total income consists mainly of income which is chargeable under the heads "Interest on securities", "Income from house property", "Capital gains" and "Income from other sources") or a company the principal business of which is the business of banking or the granting of loans and advances) consists in the purchase and sale of shares of other companies, such company shall, for the purposes of this section, be deemed to be carrying on a speculation business to the extent to which the business consists of the purchase and sale of such shares. 6. Section 73 deals with loss and speculative business. Explanation to Section 73 which is clarificatory in nature clearly sets out when a business would be said to be a speculative business. If a Company whose gross total income consists mainly of income which is chargeable under the heads "Interest on securities", the "Income from house property". "Capital gains" and "Income from other sources" and if such Company indulges in purchase and sale of shares then by a deeming provision that it is carrying on the speculation business is not attracted. In the instant case, as set out above, the assessee company has for the relevant assessment year income of Rs. 2,86,75,400/- from sale of cylinders, a sum of Rs. 88,14,690/- the income from business and Rs. 1,98,60,650/- their capital gains which themselves constitutes the main gross total income of the Company. As opposed to this the amount claimed representing the loss in the purchase and sale of shares is hardly Rs. 8,84,485/-. Therefore, as rightly pointed out by the Tribunal Section 73 is not attracted and the assessing authority committed an error in disallowing the said deduction claimed by the assessee. Therefore, the said substantial question of law is also answered in favour of the assessee and against the revenue. 7. For the aforesaid reasons, we do not see any merit in this appeal. Accordingly, the appeal is dismissed. 8. In favour of assessee.