1987 (8) TMI 32

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.... books of account of the assessee to the effect that the said shares were converted into stock-in-trade. The Income-tax Officer held that the conversion was not proper as the said shares were not easily marketable. He, therefore, came to the conclusion that the assessee had transferred her shares to the partnership of M/s. Kalpna within the meaning of section 2(47) of the Income-tax Act, 1961, and had, therefore, made herself liable for capital gains tax which he levied as per the assessment order finalised by him. He took the same view in regard to the contribution made by the trusts of which he was the sole beneficiary. Feeling aggrieved by the order passed by the Income-tax Officer, the assessee preferred an appeal before the Appellate ....

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....the decisions of the authorities below to the effect that the assessee was liable to pay capital gains tax on the transfer of shares to M/s. Kalpna, a partnership firm. The Revenue, feeling aggrieved by this order, sought a reference under section 256(1) of the Income-tax Act. The Tribunal has made a reference on the following two points: " (1) Whether, on the facts and in the circumstances of the case, the amount of Rs. 42,84,874 as long-term capital gains and Rs. 2,82,288 as short-term capital gains were includible in the assessee's total income for the assessment year 1974-75 ? (2) Whether, on the facts and in the circumstances of the case, a sum of Rs. 34,78,587 was includible in the assessee's total income for the assessment year 19....

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....nsfer within the meaning of section 2(47) of the Income-tax Act. The Tribunal did not go into the question whether the transfer in question was with or without consideration as it held that there was no transfer within the meaning of section 2(47) of the Income-tax Act. Since the finding recorded by the Tribunal on the question of transfer cannot be sustained in view of the decision of the Supreme Court in Sunil Siddharthbhai [1985] 156 ITR 509, it is obvious that the question of consideration must be answered. We are, therefore, of the opinion that the Tribunal was in error in not considering whether the transfer was with or without consideration. We must, therefore, answer the second question in the affirmative, that is to say, that the ....