Kerala H.C : Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that no element of gift was involved when the assessee retired from the firm in which he was a partner ?

Counsel Appeared

P.K.R. Menon & George K. George, for the Petitioner : B. Radhakrishnan Thottathil, for the Respondent

JUDGMENT

S. SANKARASUBBAN, J.:

This reference is made by the Tribunal, Cochin Bench, at the instance of the CGT, Trivandrum. The reference applications are under s. 26(1) of the GT Act, 1958. The assessment year is 1987-88. These arise out of Ref. Appln. Nos. 60 and 61 of 1998. The questions of law referred to are as follows :

In R.A. 60/98 :

“1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that no element of gift was involved when the assessee retired from the firm in which he was a partner ?”

In R.A. 61/98 :

“1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that no element of gift was involved when the assessee retired from the firm in which he was a partner ?

2. Whether, on the facts and in the circumstances of the case, the Tribunal was right in cancelling the penalty levied under s. 17(1)(a) of the GT Act, 1958 ?”

2. The facts which gave rise to the above reference are as follows : The assessee V. Chithra was a partner of the firm, M/s G.G. Hospital, Trivandrum. She retired from the firm during the previous year relevant to the asst. yr. 1987-88 without receiving any share of goodwill in the firm. The AO was of the view that when the assessee partner retired from the partnership, there was relinquishment of her right to share the goodwill of the firm in favour of the existing partner without any consideration and such relinquishment constituted a gift chargeable to tax. The AO accordingly determined the taxable gift and levied the gift-tax thereon. The assessee appealed to the Dy. CGT(A). The Dy. CGT(A) cancelled the gift-tax assessment relying on the decision in CGT vs. T.M. Luizkannamally (1989) 78 CTR (Ker) 36 : (1989) 180 ITR 257 (Ker) : TC 35R.511. The AO also levied the penalty under s. 17(1)(a) for failure of the assessee to file a return of gift even after issue of notice under s. 16(1) of the GT Act. The assessee appealed to the Dy. CGT against the levy of penalty. Since, according to the appellate authority, there was no liability to file gift-tax return, the penalty imposed was cancelled. The Department preferred an appeal against the order of the Dy. CGT(A) cancelling the gift-tax assessment made under s. 15(3) and the penalty levied under s. 17(1)(a). The Tribunal placing reliance on the decision in T.M. Luiz’s case (supra) held that there was no gift. In the above context, the reference applications were made.

Learned counsel for the Department, Sri Raveendranatha Menon, contended that it is a case where a partner retired from a partnership. The goodwill was an asset of the firm. The partner was entitled a share in the goodwill. But the goodwill was parted with without any consideration. According to him, the remaining partners had an advantage in that, as their share increased and hence, there was a transfer of property as per the GT Act. He submitted that decision in T.M. Luiz’s case (supra) has been upheld by the Hon’ble Supreme Court in the decision in CGT vs. T.M. Louiz (2000) 163 CTR (SC) 359 : (2000) 7 SCC 486. But, according to the learned counsel, so far as this case is concerned there is some difference in fact. There is no evidence to show that any amount was paid to the retiring partner on his retirement. He further relied on another decision of the Hon’ble Supreme Court reported in B.T. Patil & Sons vs. CGT (2000) 163 CTR (SC) 363. Sri Thottathil B. Radhakrishnan, appearing for the assessee contended that it has been categorically held by the Supreme Court that when a partner retires it is not necessary that goodwill should also be transferred to the existing partners and that there was no gift involved with regard to the goodwill is concerned, and on the facts of the case and the proposition of law laid down in T.M. Louiz’s case (supra) apply squarely. He further submits that decision in B.T. Patil’s case (supra) is not applicable. In T.M. Louiz’s case, it was held by the Hon’ble Supreme Court as follows : “When a partner retires from a partnership, the partnership continues. The assets and the goodwill of the firm continue to remain the assets and the goodwill of the firm. All that the retiring partner gets is the value of his share in the partnership assets less liabilities. In such circumstances, even assuming that the retiring partner received less than what was his due, it cannot be held that the difference was something that he had transferred to the continuing partners within the meaning of “transfer of property” for the purpose of GT Act, or that there was a gift liable to gift-tax.”

The facts in that case was that, the assessee was a partner in two firms. The GTO assessed him to gift-tax on the basis that, upon such retirement, there was a gift because the assessee had surrendered his rights in the firms. The assessee appealed and the AAC held that there was no voluntary act by the assessee and that he had only relinquished his right and interest in the firms, so that there was no gift. Before the Tribunal, it was contended by the Revenue that the amounts taken by the assessee from the firms for his shares therein was less than the market value thereof, since the goodwill of the firm had not been taken into account. There had, therefore, been a relinquishment of his shares, which was a gift. The Tribunal took the view that on retirement, the retiring partner was only entitled to get the value of his share in the partnership assets less liabilities. It was, therefore, merely an adjustment of rights between the retiring partner and the continuing partners in the assets of the partnership and there was no element of transfer of interest by the retiring partner to the continuing partners. Before the Supreme Court, its attention was drawn to the decision in CGT vs. Chhotalal Mohanlal (1987) 61 CTR (SC) 263 : (1987) 166 ITR 124 (SC) : TC 35R.551. Thereafter, the Hon’ble Supreme Court observed that, the definition of gift makes it clear that there has to be a transfer by one person to another of movable or immovable property; such transfer has to be voluntary and without consideration in money or money’s worth. When the assessee retired from the two firms, he received the value of his share therein and the argument was that what he had received was less than the market value of his shares since the goodwill of the firms had not been taken into account. It is in the above context, the Supreme Court had made the observations which had been made above. Thus, the Hon’ble Supreme Court confirmed the decision in CGT vs. T.M. Luizkannamally (supra).

5. Sri. P.K. Raveendranatha Menon contended that the facts of the case reveal that the assessee in T.M. Luiz’s case received value of his shares and it was in that context the Supreme Court held that there was no gift. Hence, according to him, in this case, there is nothing to show that any amount was paid and so there is gift. According to us, the statement of facts do not reflect that no amount was received by the assessee with regard to the value of the shares in the firm. The assessment order as well as the statement of facts show that the only question raised was whether for the purpose of goodwill any separate consideration should have been paid by the assessee for the purpose of relinquishment of goodwill. The facts do not show that the retiring partner did not receive any amount for the value of the shares. Hence, we are of the view that facts of this case is covered by the decision of the Supreme Court in T.M. Louiz’s case (supra). So far as the decision in B.T. Patil’s case (supra) is concerned, that was a case where during the subsistence of partnership, an asset of the partnership becomes the asset of any partner or partners thereof, then there is a transfer of that asset by partnership to the individual partner or partners. The Supreme Court held that, when there is a dissolution of partnership or a partner retires and obtains in lieu of his interest in the firm an asset of the firm, no transfer is involved. But the position is very different when, during the subsistence of a partnership, an asset of the partnership becomes the asset of only one of the partners thereof; there is, in such a case, a transfer of that asset by the partnership to the individual partner. In that case, the assessee was a partnership firm engaged in the activity of excavating tunnels. It had five partners. During the assessment year under consideration, it transferred certain items of machinery to each of its five partners and debited their accounts with the consideration charged therefor. The aggregate of such consideration came to Rs. 1,26,035. This apparently, was the W.D.V. of the machinery in the assessee’s books. About three months later, the five partners floated another partnership and brought in the said machinery as their capital contribution thereto, of the value of Rs. 9,48,100. Then, the new partnership firm sold the machinery to another concern for the price of Rs. 10,76,220. On these facts, the GTO came to the conclusion that the assessee had made a gift of the machinery to its five partners and the consideration therefor was much less than the market value as evidenced by the sale of machinery to the third party for the sum of Rs. 10,76,220. In the appeal it was upheld. Then the matter was taken to the Supreme Court. The Hon’ble Supreme Court held that there was a gift and the appeal was dismissed.

6. The facts of the present case are entirely different from B.T. Patil’s case (supra). In the above view of the matter, we answer the questions of law referred in the affirmative and in favour of the assessee.

[Citation : 249 ITR 313]