High Court Of Allahabad
CIT vs. Surendra Kumar Gupta
Sections 2(47), 45(1)
Asst. Year 1976-77
R.K. Agrawal & K.N. Ojha, JJ.
IT Ref. No. 292 of 1982
12th August, 2004
Counsel Appeared
Dhanjay Awasthi, for the Revenue : None, for the Assessee
JUDGMENT
R.K. Agrawal, J. :
The Tribunal, Allahabad, has referred the following two questions of law under s. 256(1) of the IT Act, hereinafter referred to as the Act, for opinion to this Court :
“1. Whether, on the facts and in the circumstances of the case, the finding of the Tribunal that the transaction was not a “transfer” is legally correct ?
2. Whether, on the facts and in the circumstances of the case, the Tribunal was correct in deleting the income from capital gains added by the ITO ?”
The present reference relates to the asst. yr. 1976-77 for which the relevant previous year ended on 31st March, 1976. Late Shri Prabhu Dayal, the father of the assessee, and one Shri Radhey Shyam Agrawal had jointly purchased a cinema building from M/s Bombay Theatres Ltd. on 20th Feb., 1958, for a sum of Rs. 1,22,400. Subsequently, they purchased machines and furniture, etc., also jointly and started running the cinema in partnership with each other w.e.f. 2nd Nov., 1958, each having half share. On 26th Jan., 1967, Shri Prabhu Dayal died. By the ‘Will’ of the same date of Shri Prabhu Dayal, all his properties passed on to the assessee. The assessee and Shri Radhey Shyam Agrawal agreed to form a new partnership w.e.f. 30th Jan., 1967. Accordingly, the business of Ajanta Talkies was run by a firm w.e.f. 30th Jan., 1967, with the assessee and Shri Radhey Shyam Agrawal as equal partners. A partnership deed was duly executed on 30th Jan., 1967.
With the passage of time differences cropped up between the two partners and both of them felt that it might no longer be possible to work in partnership with each other. They, therefore, decided to bring their relationship as partners to an end. Taking into account the nature of the business, it was considered by both the partners that it would be mutually beneficial if one of them took over the running business and paid to the other partner, the value of his share in terms of money. On the basis of this mutual understanding, the assessee, first offered to purchase the half share of Shri Radhey Shyam Agrawal in the cinema building for Rs. 2,50,000. Accordingly, an agreement to sell was executed between the two partners on 3rd Jan., 1975. A cheque of Rs. 50,000, dt. 5th Jan., 1975, was given by the assessee to Shri Radhey Shyam Agrawal as earnest money. It appears that later Shri Radhey Shyam Agrawal had second thoughts and he made a counter-offer to the assessee on 23rd Feb., 1975, offering to purchase (i) the share of the assessee in half of the immovable property of the firm for Rs. 2,60,000, and (ii) further to pay Rs. 5 lakhs for half share of the assessee in the movable properties of the firm. He also agreed to take over all the existing liabilities of the firm. The counter-offer was accepted by the assessee and accordingly the earlier agreement to sell dt. 3rd Jan., 1975, was cancelled. Rs. 50,000 given by the assessee to Shri Radhey Shyam Agrawal as earnest money was also refunded. On the other hand, Shri Radhey Shyam Agrawal gave to the assessee earnest money of Rs. 60,000 against the agreement to sell the immovable property for Rs. 2,60,000 and another Rs. 25,000 against the agreement to sell movable properties for Rs. 5 lakhs. In the two deeds mentioned above, it was stated, inter alia, that the assessee had found the above values of his half share in the firm’s movable and immovable properties as very reasonable and that none had offered him a better price. In the agreement to sell the movables dt. 23rd Feb., 1975, the following stipulation which is relevant for our purpose, appeared : ‘Jis Din is ikrarname me likhi sari rakam Minmukir ko mil jayega usi din usko building adi ka kabja va dakhal bhi de dena hoga tatha usi din se maujuda Sirkatnama Messrs Ajanta Talkies, Allahabad, bhi khatm samjhi jaigi.’ As Rs.25,000 had been paid as earnest money along with the execution of the above deed itself, the remainder to be paid in terms of the above agreement was Rs. 4,75,000 on the payment of which the firm was agreed to be dissolved.
5. Shri Radhey Shyam Agrawal could collect the aforesaid sum of Rs. 4,75,000 only by 22nd May, 1975. He paid the amount to the assessee on that date. With this the firm came to an end and as per the agreement dt. 23rd Feb.,1975, referred to above, the assessee gave up all his rights in the movable properties of the firm and also agreed to let his half share in the cinema building be utilised by Shri Radhey Shyam Agrawal for running the cinema. Sale deed regarding the share in the immovable property could not be executed (nor was it executed till the date of the order of the Tribunal) as the permission of the District authorities could not be obtained. To witness the happening of the above events, two deeds were simultaneously executed, namely, (i) dissolution deed, and (ii) sale deed, both of 22nd May, 1975, making inter-reference of each other. The dissolution deed was notified to the Registrar of Firms on 22nd May, 1975, and the sale deed was got registered on 26th May, 1979.
On the above date i.e., 22nd May, 1975, the balance sheet of the firm had total assets of the value of Rs. 3,99,352 including the immovable property (of Rs. 76,922) and the movables, and the capital accounts of the partners showed credit balances of Rs. 1,92,616 each. As against the above balance, the value of the share of the assessee in the firm’s assets was worked out, as noted above, at Rs. 7,60,000 (i.e., Rs. 2,60,000 for immovable property and Rs. 5,00,000 for movables). Actual money that passed on 22nd May, 1975, was, however, Rs. 4,75,000 only. Taking into account the earnest money of Rs. 25,000 given on 23rd Feb., 1975, the full agreed value of the movables, i.e., Rs. 5,00,000 thus passed from Shri Radhey Shyam Agrawal to the assessee by 22nd May, 1975; in case of immovable property, however, only Rs. 60,000 by way of earnest money, passed on 23rd Feb., 1975. The remaining sum of Rs. 2 lakhs was outstanding on the date of the Tribunal’s order and the immovable property had also not been transferred by that time. According to the Tribunal, the assessee still owned half share of the cinema building and got rent for it from Shri Radhey Shyam Agrawal, which was also offered for assessment as income from property year after year.
6. The Tribunal has held that it was a case of dissolution and one partner takes over the assets of the other and offered to the other the price of his share and no transfer of assets took place and, therefore, liability to capital gain did not arise. Apart from it the Tribunal also referred to cl. (i) of s. 47 of the Act which specifically excludes such transaction from the purview of capital gains.
7. We have heard Shri Dhanjay Awasthi, learned counsel for the Revenue. Nobody has put in appearance on behalf of the assessee.
8. The learned counsel for the Revenue submitted that as one of the partners had paid a sum of Rs. 5 lakhs to the other partner, it was a case of transfer of asset and, therefore, assessable to the capital gain tax. From the finding recorded by the Tribunal it is seen that on account of mutual distrust between the partners a situation arose when the business of the firm could not be carried on smoothly and, therefore, both the partners had decided to dissolve the firm. Offer was given on dissolution by the assessee to take over the assets of the firm from the other partner for Rs. 2,50,000. However, the other partner offered a sum of Rs. 5 lakhs with certain conditions which was accepted by the assessee. Thus, it is a case of dissolution of partnership firm and it did not result in any transfer of the assets as understood in the common law. Further, the deeds executed by the respective partners were only to safeguard the rights and interest and it does not reflect on the dissolution of the firm. Thus, no capital gain arose.
In view of the foregoing discussion we are of the considered opinion that the Tribunal was justified in holding that the transaction was not a transfer and no capital gains accrued. We, therefore, answer both the questions of law in the affirmative i.e., in favour of the assessee and against the Revenue. However, there shall be no order as to costs.
[Citation : 270 ITR 325]
