High Court Kerala High Court

The Commissioner Of Income Tax vs Shri.M.V.Narayanan on 28 October, 2010

Kerala High Court
The Commissioner Of Income Tax vs Shri.M.V.Narayanan on 28 October, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

ITA.No. 474 of 2009()


1. THE COMMISSIONER OF INCOME TAX,
                      ...  Petitioner

                        Vs



1. SHRI.M.V.NARAYANAN,
                       ...       Respondent

                For Petitioner  :SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES)

                For Respondent  :SRI.P.BALAKRISHNAN (E)

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice K.SURENDRA MOHAN

 Dated :28/10/2010

 O R D E R
                    C.N.RAMACHANDRAN NAIR &
                       K. SURENDRA MOHAN, JJ.
               ------------------------------------------------------------
                      I.T.A NOS:474,531,549,569,
                        832,842,1015,1016,1196,
                       1225,1257,1471 OF 2009
               -----------------------------------------------------------
               Dated this the 29th October, 2010.

                                   JUDGMENT

Ramachandran Nair, J.

All the connected appeals filed by the revenue arise from

common orders of the Tribunal holding that the amount received by

the assessees towards consideration for the retirement from the

partnership firm does not amount to transfer attracting capital

gains. We have heard senior counsel appearing for the revenue and

counsel appearing for all the respondents.

2. All the assessees were partners of a firm which was

running a bar attached hotel. The firm had land and building

thereon where the business was carried on. Besides the land,

building and fixtures the other main asset that got transferred in

the course of retirement of assessees and substitution of new

partners is the bar licence. In the course of search carried out in

the premises of a newly inducted partner and one of the assessees,

it came to the notice of the department that besides the accounted

sum of Rs.7 lakhs received by each of the assessees, another Rs.7.5

ITA 474/2009 etc. 2

lakhs was paid towards unaccounted consideration for the

retirement. The Assessing Officer treated the retirement of each of

the assessees as a transfer and the consideration received was

assessed to capital gains. Same issue was decided by two

Commissioners (Appeals). While one of them held that the income

is assessable as casual income and not as capital gain, the other

held that the Officer rightly taxed the amount for capital gain.

Appeals filed by the assessees were allowed by the Tribunal holding

that there is no capital gain arising on the retirement of partners.

3. After hearing both sides and after going through the

orders impugned we find that systematically through retirement

and reconstitution all the old partners had retired from the firm

and new set of partners have taken over the firm. However, the

process of retirement and reconstitution did not lead to any

dissolution of the firm. Consequently transactions are pure and

simple retirement of all assessees as partners of a firm in the

course of time. In the decisions of the Supreme Court in

Additional Commissioner of Income Tax, Gujarat v. Mohanbhai

Pamabhai reported in 165 ITR 166 and in another decision of the

Supreme Court in Commissioner of Income Tax v. R. Lingmallu

Raghukumar reported in 247 ITR 801, the Supreme Court held

ITA 474/2009 etc. 3

that there is no ‘transfer’ within the meaning of Section 2(47)

involved in the retirement of a partner and consequently there is no

scope for assessment for capital gains on retirement of a partner

from a firm. Even though standing counsel referred to subsequent

amendments on transfer and the scope of Section 45(4) with

particular reference to our decision in Commissioner of Income

Tax v. Southern Tubes reported in 306 ITR 216 (Ker), we do not

find retirement of a partner is specifically covered either in the

definition clause for transfer or in Section 45 of the Act. So far as

department’s claim of application of Section 45(4) is concerned, we

do not think the Section has any application when the firm is

continuing and where there is no distribution of assets of the firm.

Following the above decision of the Supreme Court we dismiss the

appeals filed by the revenue.

4. The issue decided by us in the above appeals squarely

apply to Appeal Nos: 842/2009 & 1471/2009 wherein the

respondent-assessees were partners of the very same firm. Since

we have held that no capital gains are assessable at the hands of

the retiring partners in the batch case, the same findings apply to

these appeals wherein assessees are also partners of the same firm.

ITA 474/2009 etc. 4

Therefore, following our findings above we dismiss these appeals

also filed by the revenue.

C.N.RAMACHANDRAN NAIR
Judge

K. SURENDRA MOHAN
Judge
jj

ITA 474/2009 etc. 5