1981 (8) TMI 13 - HC - Income Tax

Court rules retirement amount from partnership not capital gains

The court ruled in favor of the assessee, holding that the amount of Rs. 47,203 received on retirement from the partnership firm was not assessable as ... Capital Gains, Partner Retiring From Firm Issues Involved:1. Whether the sum of Rs. 47,203 received by the assessee on retirement from the partnership firm is assessable as capital gains u/s 12B(1) of the Indian Income-tax Act, 1922.Summary:Issue 1: Assessability of Rs. 47,203 as Capital Gains u/s 12B(1)- The assessee retired from the partnership firm 'V. K. N. Palaniappa & Co.' in 1960, and received Rs. 47,203 as his share of the net assets.- The Income Tax Officer (ITO) assessed this amount as capital gains u/s 12B of the Indian Income-tax Act, 1922, which was initially upheld by the Appellate Assistant Commissioner (AAC).- Upon further appeal, the Tribunal remitted the case, and the AAC later determined no capital gains emerged from the settlement of accounts on the assessee's retirement.- The Tribunal dismissed the Department's appeal, confirming the AAC's decision.Legal Contention:- The Department argued that the amount received represented consideration for relinquishment of the assessee's interest in the partnership, thus assessable as capital gains.- The court rejected this contention, referencing the Supreme Court's rulings in Narayanappa v. Bhaskara Krishnappa and CIT v. Dewas Cine Corporation, which clarified that a partner's share in a partnership does not constitute a capital asset that can be transferred or relinquished.Relevant Case Law:- Narayanappa v. Bhaskara Krishnappa (AIR 1966 SC 1300): A partner's right is to obtain profits and a share in surplus assets upon dissolution, not to treat any portion of the partnership property as his own.- CIT v. Dewas Cine Corporation (1968) 68 ITR 240 (SC): On dissolution, partners have the right to surplus assets after liabilities, and this distribution does not amount to a transfer of assets.- CIT v. Mohanbhai Pamabhai (1973) 91 ITR 393 (Guj): Receipt of a partner's share on retirement is not a transfer within the meaning of s. 2(47) of the I.T. Act, 1961.Distinction by Bombay High Court:- CIT v. Tribhuvandas G. Patel (1978) 115 ITR 95 (Bom): Distinguished between lump sum payments and payments after valuation of net assets, considering the former as involving transfer or relinquishment.Court's Conclusion:- The court disagreed with the Bombay High Court's distinction, holding that whether a partner receives a lump sum or a calculated share, it is merely a realization of his own share in the partnership.- The court accepted the Gujarat High Court's view that no transfer or relinquishment occurs, and the amount received is not assessable as capital gains.Final Judgment:- The court answered the reference in the negative, ruling in favor of the assessee, and held that the sum of Rs. 47,203 is not assessable as capital gains. No order as to costs was made.