Madras H.C : There was no evidence to show that after such dissolution, the property which had belonged to the firm was transferred either to the surviving partner or to the legal heirs of the deceased partner.

High Court Of Madras

CIT vs. Vijayalakshmi Metal Industries

Section 45(4)

Asst. Year 1989-90

R. Jayasimha Babu & Mrs. A. Subbulakshmy, JJ.

Tax Case No. 665 of 1995

25th September, 2001

Counsel Appeared

T. Ravikumar, for the Revenue : P.P.S. Janardhana Raja, for the Assessee

JUDGMENT

R. JAYASIMHA BABU, J. :

The Revenue seeks to levy capital gains tax on a transfer which had admittedly not taken place. It relies on the fact that the firm which consisted of two partners stood dissolved by the death of one of them on 3rd March, 1989. There was no evidence to show that after such dissolution, the property which had belonged to the firm was transferred either to the surviving partner or to the legal heirs of the deceased partner. On the other hand what is found by the Tribunal is that even after the demise of one of the partners, the business continued and assessment continued to be made on the firm. The assessment year with which we are concerned is the year 1989-90. In that year there was a dissolution by operation of law by reason of s. 42(c) of the Partnership Act. That however was not followed by the transfer of capital assets by way of distribution of capital assets on the dissolution of the firm. Sec. 45(4) of the IT Act, 1961, reads as under : “45. (4) The profits or gains arising from the transfer of a capital asset by way of distribution of capital assets on the dissolution of a firm or other AOP or BOI (not being a company or a cooperative society) or otherwise, shall be chargeable to tax as the income of the firm, association or body, of the previous year in which the said transfer takes place and, for the purposes of s. 48, the fair market value of the asset on the date of such transfer shall be deemed to be the full value of the consideration received or accruing as a result of the transfer.”

4. The section is concerned with the capital gains arising from transfer of a capital asset by way of distribution of capital assets on the dissolution of a firm. The section does not deem the date of dissolution as the date on which the transfer takes place. Dissolution by operation of law as in this case may take place on the demise of one of two partners. That however does not imply that on that day there is a notional transfer of capital assets and that any one or more of the capital assets owned by the erstwhile firm stands transferred to the other partner or to other persons entitled to claim the share of the deceased partner. The relevant date for ascertaining the year in which the tax is to be levied is the year in which the transfer takes place. That year may or may not be the year in which the dissolution of the firm takes place. Until such time such capital asset is transferred by way of distribution of the assets on the dissolution of the firm no occasion arises for bringing to tax any capital gain on a transfer which has not taken place. The section itself gives no room for doubt as the year in which the. capital gain is to be brought to tax is, the previous year in which the said transfer takes place.As it is the finding of the Tribunal that no transfer had taken place in this year, the occasion for levying tax on any capital gain did not arise. The question referred to us as to whether the Tribunal was right in law in holding that capital gain did not arise in this case is answered in favour of the assessee and against the Revenue.

[Citation : 256 ITR 540]

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