M/s. S. Balmukund Paper Marchant, Kolhapur V. ITO,Wd.-2, Ichalkaranji

ITA 593/PUN/2011

• Counselvise Citation: 59324514 RSA 2011
• Duration Of Justice: 2 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 29-10-2012
• Assessment Year: 2001-2002
• Appeal Filed On: 09-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Capital asset; Fair market value
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE: SHRI G. S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 593 / P N/ 20 11 ASSESSMENT YEAR : 2001 - 02 M/S. S. BALMUKUND PAPER MARCHANT, 7 TH LANE, STATION ROAD, JAYSINGPUR, KOLHAPUR VS. INCOME - TAX OFFICER, WARD - 2, ICHALKARANJI (APPELLANT) (RESPONDENT) PAN NO. ABIFS2664M ITA NO. 594 /PN/20 11 ASSESSMENT YEAR : 2003 - 04 SHRI BIYANI BALMUKUND RAJARAM, 7 TH LANE, STATION ROAD, JAYSINGPUR, KOL HAPUR VS. INCOME - TAX OFFICER WARD - 1, ICHALKARANJI (APPELLANT) (RESPONDENT) PAN NO. AAYPB5246R ITA NO. 595 /PN/20 11 ASSESSMENT YEAR : 2003 - 04 SMT. BIYANI BHAGWATIDEVI, 7 TH LANE, STATION ROAD, JAYSINGPUR, KOLHAPUR VS. INCOME - TAX OFFICER WARD - 1, ICHAL KARANJI (APPELLANT) (RESPONDENT) PAN NO. AEEPB08333N APPELLANT BY: SHRI M.K. KULKARNI RESPONDENT BY: SHRI SANTOSH KUMAR DATE OF HEARING : 17 - 06 - 2013 DATE OF PRONOUNCEMENT : 24 - 06 - 2013 ORDER P ER R.S. PADVEKAR , JM : - THIS BATCH OF THREE APPEALS , ONE BY THE ASSESSEE FIRM AND TWO BY THE PARTNERS ARE FILED, CHALLENGING THE RESPECTIVE IMPUGNER ORDERS OF THE LD. CIT(A) - KOLHAPUR. SO FAR AS THE ASSESSEE FIRM IS CONCERNED THE ASSESSMENT YEAR IS INVOLVED IS 2001 - 02 , AND IN CASE OF THE ASSESSEE P ARTNERS THE ASSESSMENT YEAR 2002 - 03. THE ISSUE AS WELL AS THE FACTS ARE INTERLINKED IN THESE THREE APPEALS AND HENCE , THESE APPEALS ARE DISPOSED OF BY THIS CONSOLIDATION ORDER. 2 I TA NOS. 593, 594 & 595, S.BALMUKUND PAPER MARCHANT, BIYANI BHAGWATIDEVI & BIYANI BALKUMUD RAJARAM , KOLHAPUR 2 . ONCE WE DECIDE APPEAL OF THE ASSESSEE FIRM THAT WILL HAVE THE HEARING ON THE DECISION OF OTHER TWO ASSESSEE PARTNERS , HENCE, WE TAKE UP THE FIRMS APPEAL FIRST BEING ITA NO. 593/PN/2011 IN WHICH THE ASSESSEES FIRM IS TAKEN THE FOLLOWING EFFECTIVE GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW EVEN AFTER DISSOLUTION AND HEREBY RECOGNIZING THE INDIVIDUAL RIGHTS OF THE PARTNER CONTINUED AS DEFUNET FIRM OWNING A PARTICULAR A PARTICULAR ASSET WHICH WAS SOLD BY THE FIRM ONLY IN A.Y. 2003 - 04. THUS CAPITAL GAIN IS TAXABLE IN THE HANDS OF THE FIRM ONLY. THE A SSESSMENT OF CAPITAL GAIN MADE IN THE HANDS OF THE APPELLANT IS ILLEGAL AND BE QUASHED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) FAILED TO APPRECIATE THE PROVISIONS OF LAW THAT EVEN AFTER DISSOLUTION AND RECOGNIZING THE RIGHTS OF THE INDIVIDUAL PARTNER CAN CONTINUE AS DEFUNCT FIRM WITH OWNERSHIP OF SOME OF THE ASSETS WITH IT. LEGALLY IT MEANS THE UNANIMOUS DECISION OF THE PARTNERS WAS TO CONTINUE THE OWNERSHIPS OF THE ASSET WITH SOME OF THE ASSETS AND WAS ENTITLED TO D ISPOSE OF THE SAME AT APPROPRIATE TIME. THE SAME THING HAS BEEN DONE BY THE FIRM IN THE INSTANT CASE. THE LONG TERM CAPITAL GAIN IS LEGALLY ASSESSABLE IN THE HANDS OF THE FIRM IN A.Y. 2003 - 04 . THE INSTANT ASSESSMENT BEING ILLEGAL AND WITHOUT JURISDICTIO N BE QUASHED. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE APPELLANT DENIES HIS LIABILITY TO PAY INTEREST U/S. 234 - A, 234 - B AND 234 - C OF THE ACT AND THE SAME BE QUASHED. 3 . THE FACTS IN BRIEF, REVEALED FROM THE RECORD ARE AS UNDER. THE ASSESSEE FIRM WAS IN THE BUSINESS OF TRADING IN PAPERS AND STATION E RY TILL 31 - 03 - 1999. THE DISSOLUTION DEED WAS EXECUTED ON 10 - 04 - 2000 WITH EFFECT FROM 01 - 04 - 2000. A S NOTED BY THE AUTHORITIES BELOW , THE ASSETS AND LIABILITIES WERE TAKEN OVER BY THE ERSTWHILE PARTNERS ON DISSOLUTION OF THE FIRM. ONE OF THE ASSET S VIZ. PROPERTY AT C . S . NO. 355 / B, KOLHAPUR WAS TRANSFERRED TO BOTH THE PARTNERS EQUALLY . A T THE TIME OF DISSOLUTION ITSELF T HE ASSESSEE FIRM DID NOT ADMIT ANY TRANSFER OR DISTRIBUTION OF THE SAID PROPERTY AND HENCE , THE ASSESSING OFFICER ISSUED THE NOTICE U/S. 148 DATED 08 - 11 - 2006. THE ASSESSMENT WAS COMPLETED IN CONSEQUENCE OF THE SAID NOTICE. THE ASSESSEE FIRM FILED THE RETURN OF INCOME ADMITTING TOTAL INCOME OF RS.11,3 3 ,420/ - UNDER THE H EAD LONG TERM CAPITAL GAIN S BUT DURING THE ASSESSMENT PROCEEDINGS THE AS SESSEE DENIED THE 3 I TA NOS. 593, 594 & 595, S.BALMUKUND PAPER MARCHANT, BIYANI BHAGWATIDEVI & BIYANI BALKUMUD RAJARAM , KOLHAPUR LIABILITY TO C APITAL G AIN S T AX BY TAKING THE STAND THAT THERE WAS NO ACTUAL TRANSFER OF ASSET. THE ASSESSEE ALSO FILED AN APPLICATION TO THE ASSESSING OFFICER REQ UESTING THAT THE GAIN ON THE TRANSFER OR SALE OF THE PROPERTY AT KOLHAPUR MAY BE TAXED IN THE A.Y. 2003 - 04. THE ASSESSEE ALSO CONTENDED THAT NO EFFECT WAS GIVEN TO ANY OF THE CLAUSE OF THE DEED OF DISSOLUTION BY ANY OF THE PARTNERS. THE ASSESSING OFFICER REJECTED THE CONTENTIONS OF THE ASSESSEE AND BROUGHT TO TAX THE CAPITAL GAIN AS PER THE PROVISIONS OF SEC. 2 ( 47 ) R.W.S. 45. THE MATTER WAS CARRIED BEFORE THE LD. CIT(A) THE CONTENTIONS OF THE ASSESSEE IS RECORDED IN PARA NOS. 5 & 6 OF THE ORDER OF THE LD . CIT(A) WHICH IS AS UNDER: 5. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE APPELLANT FILED WRITTEN SUBMISSION WHEREIN IT WAS CONTENDED THAT (I) BECAUSE OF DIFFERENCES, SHRI BALMUKUND R. BIYANI REFUSED TO ACCEPT THE TERMS OF THIS AGREEMENT DATED 10.04.2000 AND THEREFORE THE AFFAIRS OF THE FIRM COULD NOT BE WOUND UP. (II) MOST OF THE LIABILITIES WERE NOT PAID AND MANY OF THE ASSETS WERE ALSO NOT YET TRANSFERRED AS PER AGREEMENT AND, AS SUCH, THERE WAS NO DISSOLUTION AS ON 01.04.2000. (III) THE PROP ERTY WAS SOLD BY THE FIRM TO SIX PERSONS FOR A SUM OF RS.27 LACS ON 29.03.2003 AND CHEQUES/DRAFTS WERE REALIZED ON 10.04.2004. (IV) ONE OF THE PARTNERS, MRS. BHAGVATIDEVI S. BIYANI ADMITTED CAPITAL GAIN FOR A.Y. 2004 - 05 ON SALE OF HER SHARE IN THE PROPERTY . (V) SMT. BHAGVATIDEVI S. BIYANI SUBMITTED THE RETURN OF INCOME ON BEHALF OF THE FIRM FOR A.Y. 2001 - 02 IN RESPONSE TO NOTICE U/S. 148. (VI) DURING THE COURSE OF ASSESSMENT PROCEEDINGS, MR. BALMUKUND R. BIYANI REQUESTED FOR TAXING THE CAPITAL GAINS FOR A.Y . 2003 - 04 AS THE PROPERTY WAS SOLD ON 29.03.2003 AND THE OTHER PARTNERS ALSO GAVE CONSENT FOR THE SAME. AS FAR AS MERITS ARE CONCERNED, THE APPELLANT RELIED ON VARIOUS DECISIONS TO SUGGEST THAT CAPITAL GAINS AROSE ONLY ON THE EXECUTION OF SALE - DEED ON 29. 03.2003. 6. WITHOUT PREJUDICE TO THE ABOVE SUBMISSIONS, IT WAS ALSO SUBMITTED THAT EVEN IF IT IS PRESUMED THAT DISSOLUTION WAS MADE ON 01.04.2000, NO CAPITAL GAIN AROSE AS THERE WAS NO DISTRIBUTION OF CAPITAL ASSETS AND THERE WAS NO TRANSFER OF IMMOVABLE PROPERTY AND THEREFORE IT WAS SUBMITTED THAT THE PROVISIONS OF SECTION 45(4) HAVE NO APPLICATION FOR A.Y. 2001 - 02 AND REQUESTED THAT CAPITAL GAINS MAY BE DIRECTED TO BE TAXED IN THE HANDS OF THE FIRM FOR A.Y. 2003 - 04. THE ASSESSEE FIRM DID NOT FIND AN Y FAVOUR AS LD. CIT(A) CONFIRMED THE ASSESSMENT MADE BY THE ASSESSING OFFICER. NOW THE ASSESSEE IS IN APPEAL BEFORE US. 4 I TA NOS. 593, 594 & 595, S.BALMUKUND PAPER MARCHANT, BIYANI BHAGWATIDEVI & BIYANI BALKUMUD RAJARAM , KOLHAPUR 4. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE RECORD. THE ASSESSEE FIRM WAS DO I NG THE BUSINESS AS PER PARTN ERSHIP D EED DATED 16 - 07 - 1973 . T HEREAFTER THE FIRM WAS RECONSTITUTED ON ACCOUNT OF DEATH/RETIREMENT OF SOME PARTNERS AND LASTLY PARTNERSHIP D EED WAS EXECUTED ON 01 - 0 4 - 1996 AND BUSINESS WAS DONE UP TO 31 - 03 - 2000. THE ASSESSEE FIRM HAS PURCHASED ONE IMMOVABL E PROPERTY BEARING C.S. NO. 355/B/3, B - WARD, MANGALWAR PETH, KOLHAPUR ON 20 - 12 - 1984 AND THE SAID PROPERTY WAS HELD BY THE FIRM. IT WAS ARGUED BEFORE US THAT THERE WERE DISPUTE S AMONG ST THE PARTNERS AND HENCE , IT WAS DECIDED TO DISSOLVE THE ASSESSEE F I RM A ND DEED OF DISSOLUTION WAS EXECUTED ON 10 - 04 - 2000. AS PER THE TERMS OF THE DEED OF DISSOLUTION , IT WAS AGREED THAT THE SAID PROPERTY WILL REMAIN THE PROPERTY OF THE FIRM AND SAME IS TO BE SOLD BY THE FIRM AND AFTER PAYING ALL THE DEBTS/ LIABILITIES BALANCE AMOUNT WAS TO BE DISTRIBUTED AMONGST THE PARTNERS. 5. THE LEARNED COUNSEL SUBMITS THAT THE SAID PROPERTY WAS SOLD BY SALE DEED DATED 29 - 03 - 2003 FOR RS.27 LACS TO SHRI DATTATRAY VITHAL GANJAVE AND OTHERS AND HENCE, THE CAPITAL GAIN WAS REQUIRED TO BE AS SESSED IN A.Y. 2003 - 04 IN THE HAND OF THE FIRM. THE LEARNED COUNSEL REFER TO THE DEED OF DISSOLUTION DATED 10 - 04 - 2000 MORE PARTICULARLY CLAUSE NOS. 3 & 6 AND SUBMITS THAT IN THE VERY CLEAR TERMS BOTH THE PARTNERS AGREED THAT THE PROPERTY BEARING C.S. NO. 355/B/3 AT MANGALWAR PETH, KOLHAPUR WAS CONTINUED TO BE OWNED BY THE ASSESSEE FIRM AND ONLY OTHER ASSETS WERE DISTRIBUTED. HE ARGUES THAT THE SAID PROPERTY WAS FINALLY SOLD ON 29 - 03 - 2003 AND COPY OF SALE DEED IS PLACED IN THE COMPILATION. HE TOOK US THE COPY OF THE SALE DEED (WHICH IS IN MARATHI) AND SUBMITS THAT IN THE SAID SALE DEED CATEGORICAL ASSERTION IS MADE THAT THE SAID PROPERTY WAS BELONGS TO THE ASSESSEE FIRM. H E THEREFORE SUBMITTED THAT EVEN IF THERE WAS A DISSOLUTION OF THE ASSESSEE FIRM BUT THE PROPERTY IN DISPUTE IN QUESTION WAS NEVER DISTRIBUTED BUT IT 5 I TA NOS. 593, 594 & 595, S.BALMUKUND PAPER MARCHANT, BIYANI BHAGWATIDEVI & BIYANI BALKUMUD RAJARAM , KOLHAPUR WAS SOLD BY THE ASSESSEE FIRM IN 2003 AND PROCEEDS WERE APPLIED FOR REPAYMENT OF THE LIABILITIES AND ITSELF. HE ALSO REFERRED TO SEC. 45 (4) OF THE INCOME - TAX ACT AND SUBMITS THAT IN THE PRE SENT CASE IS BASED ON THE FACT THAT THE ASSESSEE FIRM HAS BEEN DISSOLVED VIDE DEED OF DISSOLUTION DATED 10 - 04 - 2000 AND BOTH THE PARTIES BELOW ERRONEOUSLY HELD THAT ONCE THERE IS A DISSOLUTION THEN THE RE IS DEEMED DISTRIBUTION OF THE ASSETS. HE ARGUES THAT NO PRESUMPTION CAN BE DRAWN BASED ON THE ALLOCATIONS OF THE ASSETS SHOWN IN THE DEED OF DISSOLUTION AS THE SAID ALLOCATION WAS MERELY THE BOOK ENTRIES TO CLARIFY THE CAPITAL ACCOUNTS OF PARTNERS. HE PLEADED FOR CANCELLING THE CAPITAL GAINS ASSESS ED IN TH E A.Y. 2001 - 02 . THE LEARNED COUNSEL RELIED ON THE FOLLOWING DECISIONS: 1. CIT VS. VIJAYALAXMI METAL INDUSTRIES 256 ITR 540 (MAD) 2. CHALASANI VENKATESHWAR RAO VS. ITO 349 ITR 423 (AP) 3. CIT VS. A.N. NAIK ASSOCIATES 265 ITR 346 (BOM) 6 . PER CONTRA, THE LD. DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. THE ISSUE IN CONTROVERSY IS IN NARROW COMPASS. WE FIND THAT THERE IS NO DISPUTE ON THE BASIC FACT THAT THE ASSESSEE FIRM WAS DISSOLVED BY THE DEED OF DISSOLUTION DATED 10 - 04 - 2000. THE LEARNED COUNSEL HAS FILED THE ENGLISH TRANSLATION OF THE DISSOLUTION DEED WHICH IS VERY MUCH RELEVANT TO DECIDE THE PRESENT ISSUE HENCE, WE REPRODUCE THE RELEVANT PARTS ON WHICH THE ASSESSMENT IS BASED. 1). THE WHOLE BUSINESS OF THE FIRM M/S. S. BALMUKUND JAYSINGHPUR IS DECIDED TO BE DISCONTINUED FROM 01 - 04 - 2000. 2). THE BALANCE SHEET AS AT 31 - 03 - 2000 OF THE FIRM HAS BEEN PREPARED AND SINCE NO BUSINESS OF WHATSOEVER KIND HAS BEEN DONE FROM 31 - 03 - 2000 ONWARDS HENCE THE BALANCE SHEET AS AT 31 - 03 - 2000 WILL BE TAKEN AS FOUND ATION FOR DISSOLUTION OF THE FIRM. 3). THE DIVISION OF ALL THE ASSETS AND LIABILITIES OF THE FIRM M/S. S. BALMUKUND AS AT 31 - 03 - 2000 HAS BEEN DONE BETWEEN THE TWO PARTNERS WITH MUTUAL CONSENT AND THE OPEN PLOT OF LAND NO. C.S. 355 - THIS IMMOVABLE PROPERTY WILL CONTINUE TO BE OWNED BY THE FIRM AND REMAINING THE DIVISION OF REMINDER ASSETS WILL BE AS UNDER: 6 I TA NOS. 593, 594 & 595, S.BALMUKUND PAPER MARCHANT, BIYANI BHAGWATIDEVI & BIYANI BALKUMUD RAJARAM , KOLHAPUR 1) SHRI BALMUKUND RAJARAM BIYANI CAPITAL & LIABILITIES ASSET & PROPERTIES PARTNER CAPITAL 34961 PLOT NO. 355, KOLHAPUR SHARE 157540 SUNDRY CR EDITOR 1167226 FURNITURE 67807 MAHAMULT AGENCIES 93168 SCOOTER 4358 S.B. BIYANI & BROS. 135242 SCOOTER 8700 18953 SHREE OM AGENCIES 5047 SHARES 34885 NATH TRADERS 122147 ICHALKARANJI JANATA BANK 9000 ARCHANA AGENCIES 140101 KARAD M.N.S .O. 1500 NIKET TRADERS 466938 KOLHAPUR MAHILA BANK 1800 0 S. B. UDYOG 204583 BUILDING FUND 6000 KOLHAPUR MAHILA BANK 111 MAHAVIR BANK 250 BANK CURRENT A/C 6975 BANK SB A/C AS PER BALANCE SHEET 36 14 GANESH BANK KURNDWA D 5 ICHALKARANJI JANATA BANK 272 ICHALKARANJI JANATA BANK 705 ICHALKARANJI JANATA BANK 2467 MAHAVIR BANK 100 YOUTH BANK 60 RADHESHYAM BIYANI 8693 SUNDRY DRS. AS PER BALANCE SHEET 900522 12 02187 1202187 2) SO U. BHAGWATIDEVI SHRIBHAGWAN BIYANI CAPITAL & LIABILITIES ASSET & PROPERTIES SUNDRY CREDITOR CS NO. 355, B WARD, KOLHAPUR, SHARE 157540 M/S. OM AGENCIES 124381 SHARES 14000 SALORA PAPER MILLS 19076 KOLHAPUR MAHILA BANK 1000 MASTER COAT MUMBAI 5000 MAHILA SAH. PAT SANSTHA 8000 RAJARAM B. BIYANI 197931 FIXED DEPOSIT WITH MAHILA MERCHANT 5000 BANK SAVINGS A/C 416 CAPITAL ACCOUNT 168767 CASH IN HAND 4659 B/S DIFFERENCE 1006 346388 346388 4). AS MENTIONE D ABOVE THE DIFFERENT DEBTORS AND CREDITORS OF THE PARTNERSHIP FIRM HAVE BEEN CLEARLY NOTED AGAINST THE NAMES OF THE TWO PARTNERS AND THE RECOVERY FROM THE DEBTORS AND THE PAYMENTS 7 I TA NOS. 593, 594 & 595, S.BALMUKUND PAPER MARCHANT, BIYANI BHAGWATIDEVI & BIYANI BALKUMUD RAJARAM , KOLHAPUR FOR DISCHARGE OF LIABILITIES WILL REMAIN THEIR PERSONAL RESPONSIBILITY. IT WILL NOT HAVE ANY RELATION/RESPONSIBILITY WITH OTHER PARTNER. ALSO THE OTHER PARTNER WILL NOT HAVE RESPONSIBILITY FOR THE SAME. THE OTHER ACCOUNTS IS TO BE COMPLETED WHEN THE PLOT OF LAND WILL BE SOLD. 5). THE VEHICLE MARUTI CAR MAL 800 AND SHOWN IN TH E BALANCE - SHEET AT 31 - 03 - 2000 IS AGREED TO BE GIVEN TO SHRI RADHESHYAM RAJARAM BIYANI WHO IS BROTHER OF THE PARTNER OF THE FIRM SHRI BALMUKUND RAJARAM BIYANI AT BOOK VALUE OF RS. 8683/ - SHRI BALMUKUND BIYANI WILL COMPLETE ALL THE FORMALITIES AND NECESSARY DOCUMENTS FOR TRANSFER OF THE SAID CAR. 6). THE OPEN PLOT OF LAND SITUATE AT CS NO. 355 B, WARD, KOLHAPUR PURCHASED BY THE PARTNERSHIP FIRM IS IN THE OWNERSHIP OF THE PARTNERSHIP AND THE USE OR SELL OF THE SAME WILL BE AS PER MUTUAL UNDERSTANDING OF BOTH THE PARTNERS AND THEN THEREAFTER BOTH THE PARTNERS ARE FREE TO UTILIZE THE PROCEEDS IN 50:50 SHARE. 7 ). ALL THE GOVT. TAXES PAYABLE IN RESPECT OF CS NO. 355, B WARD, KOLHAPUR, FOR THEIR POSSESSION AND IN RELATION TO ITS SALE ARE TO BE PAID BY BOTH THE PAR TNERS CONTINUING TO - DAY. 8). .. 9). .. 10). .. 7 . WE HAVE PERUSED THE COPY OF THE SALE DEED DATED 29 - 03 - 2003 WHICH IS IN MARATHI PLACE AT PAGE NOS. 12 TO 36. NOW LET US THE ISSUE OF LEGAL POSSESSION MORE PARTICULARLY IN THE CONTEXT IN THE PARTNERSHIP ACT, 1932. THERE ARE DIFFERENT MODES OF THE DISSOLUTION OF THE FIRM. SO FAR AS THE DISSOLUTION OF THE ASSESSEE FIRM IS CONCERNED IT IS DISSOLUTION IS AT WILL. SEC. 46 OF THE INDIAN PARTNERSHIP ACT, 1932 PROVIDES AS UNDER: RIGHT OF P ARTNERS TO HAVE BUSINESS WOUND UP AFTER DISSOLUTION. ON THE DISSOLUTION OF A FIRM EVERY PARTNER OR HIS REPRESENTATIVE, IS ENTITLED AS AGAINST ALL THE OTHER PARTNERS OR THEIR REPRESENTATIVES TO HAVE THE PROPERTY OF THE FIRM APPLIED IN PAYMENT OF THE DEBTS AND LIABILITIES OF THE FIRM, AND TO HAVE THE SURPLUS DISTRIBUTED AMONG THE PARTNERS OR THEIR REPRESENTATIVES ACCORDING TO THEIR RIGHTS. 8 . AS PER THE SEC. 46 THE SAID SECTION DEALS WITH THE RIGHTS OF THE PARTNERS TO WIND UP AFTER DISSOLUTION AND HAVE THE PROPERTY OF THE FIRM APPLIED IN PAYMENTS AND DEBTS OF THE FIRM AND HAVE THE SURPLUS DISTRIBUTED AMONGST THE PARTNERS OR THEIR REPRESENTATIVES. AS PER THE TERMS OF THE DISSOLUTION DEED , SO FAR AS PROPERTY LAND AT CS NO. 355/B 8 I TA NOS. 593, 594 & 595, S.BALMUKUND PAPER MARCHANT, BIYANI BHAGWATIDEVI & BIYANI BALKUMUD RAJARAM , KOLHAPUR IN KOLHAPUR IS CONCERNED BOTH THE PARTNERS AGREED THAT THE SAID PROPERTY WOULD BE OWNED BY THE FIRM EVEN AFTER DISSOLUTION. AS PER CLAUSE 6 OF THE DEED OF DISSOLUTION IT IS PROVIDED THAT THE SAID PROPERTY IS OWNED BY THE PARTNERSHIP FIRM AND THE SALE OR USE OF THE SAME AS PER THE MUT UAL UNDERSTANDING OF BOTH THE PARTIES. IT IS RELEVANT TO CONSIDER HERE SEC. 45(4) OF THE INCOME TAX ACT WHICH READS AS UNDER : THE PROFITS OR GAINS ARISING FROM THE TRANSFER OR A CAPITAL ASSET BY WAY OF DISTRIBUTION OF CAPITAL ASSETS ON THE DISSOLUTION OF A FIRM OR OTHER ASSOCIATION OF PERSONS OR BODY OF INDIVIDUALS (NOT BEING A COMPANY OR A CO - OPERATIVE 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 PLAC E AND, FOR THE PURPOSES OF SECTION 48, THE FAIR MARKET VALUE OF THE ASSET ON THE D ATE OF SUCH TRANSFER SH ALL BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER. 9 . THE HON'BLE HIGH COURT OF P ANAJI BENCH HA S EXPLAINED SUB - SEC. ( 4 ) OF SEC. 45 , AFTER CONSIDERING THE LEGISLATIVE HISTORY IN THE CASE OF A.N. NAIK ASSOCIATES AND ANOTHER (SUP RA ) THE OPERATIVE PART OF THE DECISION IS AS UNDER: TO PLUG THIS LOOPHOLE THE FINANCE ACT, 1987, BROUGHT ON THE STATUTE BOOK A NEW SUB - SECTION (4) IN SECTION 45 OF THE ACT. THE EFFECT IS THAT THE PROFITS OR GAINS ARISING FROM THE TRANSFER OF A CAPITAL ASSET BY A FIRM TO A PARTNER ON DISSOLUTION OR OTHERWISE WOULD BE CHARGEABLE AS THE FIRM'S INCOME IN THE PREVIOUS YEAR IN WHICH T HE TRANSFER TOOK PLACE AND FOR THE PURPOSES OF COM PUTATION OF CAPITAL GAINS, THE FAIR MARKET VALUE OF THE ASSET ON THE DATE OF TRANSFER WOULD BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUED AS A RESULT OF THE TRANSFER. THEREFORE, I F THE OBJECT OF THE ACT IS SEEN AND THE MISCHIEF IT SEEKS TO AVOID, IT WOULD BE CLEAR THAT THE INTENTION OF PARLIAMENT WAS TO BRING INTO THE TAX NET TRANSACTIONS WHEREBY ASSETS WERE BROUGHT INTO A FIRM OR TAKEN OUT OF THE FIRM. THE EXPRESSION 'OTHERWISE' I N OUR OPINION, HAS NOT TO BE READ EJUSDEM GENERIS WITH THE EXPRESSION, 'DISSOLUTION OF A FIRM OR BODY OR ASSOCIATION OF PERSONS'. THE EXPRESSION 'OTHERWISE' HAS TO BE READ WITH THE WORDS 'TRANSFER OF CAPITAL ASSETS' BY WAY OF DISTRIBUTION OF CAPITAL ASSETS . IF SO READ, IT BECOMES CLEAR THAT EVEN WHEN A FIRM IS IN EXISTENCE AND THERE IS A TRANSFER OF CAPITAL ASSETS IT COMES WITHIN THE EXPRESSION 'OTHERWISE' AS THE OBJECT OF THE AMEND ING ACT WAS TO REMOVE THE LOOPHOLE WHICH EXISTED WHEREBY CAPITAL GAIN TAX W AS NOT CHARGEABLE. IN OUR OPINION, THEREFORE, WHEN THE ASSET OF THE PARTNER SHIP IS TRANSFERRED TO A RETIRING PARTNER THE PARTNERSHIP WHICH IS ASSESSABLE TO TAX CEASES TO HAVE A RIGHT OR ITS RIGHT IN THE PROPERTY STANDS EXTINGUISHED IN FAVOUR OF THE PARTNER TO WHOM IT IS TRANSFERRED. IF SO READ IT WILL FURTHER THE OBJECT AND THE PURPOSE AND INTENT OF THE AMENDMENT OF SECTION 45. ONCE, THAT BE THE CASE, WE WILL HAVE TO HOLD THAT THE TRANSFER OF ASSETS OF THE PARTNERSHIP TO THE RETIRING PARTNERS WOULD AMOUNT T O THE TRANSFER OF THE CAPITAL ASSETS IN THE NATURE OF 9 I TA NOS. 593, 594 & 595, S.BALMUKUND PAPER MARCHANT, BIYANI BHAGWATIDEVI & BIYANI BALKUMUD RAJARAM , KOLHAPUR CAPITAL GAINS AND BUSINESS PROFITS WHICH IS CHARGEABLE TO TAX UNDER SECTION 45(4) OF THE INCOME - TAX ACT. WE WILL, THEREFORE, HAVE TO ANSWER QUESTION NO. 3 BY HOLDING THAT THE WORD 'OTHERWISE' TAKES INTO ITS SWEEP POT ONLY CASES OF DISSOLUTION BUT ALSO CASES OF SUBSISTING PARTNERS OF A PARTNERSHIP, TRANSFERRING ASSETS IN FAVOUR OF A RETIRING PARTNER. THE ONLY OTHER CONTENTION ADVANCED IS THAT SECTION 2(47) HAS NOT BEEN AMENDED AND CONSEQUENTLY EVEN IF SEC TION 45(4) HAS BEEN BROUGHT IN BY THE AMENDMENT YET THERE IS NO TRANSFER. IN OUR OPINION, THAT WOULD NOT BE THE COR RECT POSITION. FIRSTLY, THE DEFINITION OF TRANSFER ITSELF IS INCLUSIVE. BEFORE THE INTRO DUCTION OF SUB - SECTION (4), THERE WAS CLAUSE (II) OF SECTION 47 WHICH READ AS UNDER: 'ANY DISTRIBUTION OF CAPITAL ASSETS ON THE DISSOLUTION OF A FIRM, BODY OF INDIVIDUALS OR OTHER ASSOCIATION OF PERSONS.' CONSIDERING THIS CLAUSE AS EARLIER CONTAINED IN SECTION 47, IT MEANT THAT THE DISTRIBUTION OF CAPITAL AS SETS ON THE DISSOLUTION OF A FIRM, ETC., WERE ROT REGARDED AS 'TRANSFER'. THE FINANCE ACT, 1987, WITH EFFECT FROM APRIL 1, 1988, OMITTED THIS CLAUSE, THE EFFECT OF WHICH IS THAT DISTRIBUTION OF CAPITAL ASSETS THE DISSOLUTION OF A FIRM WOULD HENCEFORTH BE R EGARDED AS 'TRANSFER'. THEREFORE, INSTEAD OF AMENDING SECTION 2(47), THE AMENDMENT WAS CARRIED OUT BY THE FINANCE ACT, 1987, BY OMITTING SECTION 47(II), THE RESULT OF WHICH IS THAT DIS TRIBUTION OF CAPITAL ASSETS ON THE DISSOLUTION OF A FIRM WOULD BE REGAR DED AS 'TRANSFER'. THEREFORE, THE CONTENTION THAT IT WOULD NOT AMOUNT TO A TRANSFER HAS TO BE REJECTED. IT IS NOW CLEAR THAT WHEN THE ASSET IS TRANSFERRED TO A PART NER, THAT FALLS WITHIN THE EXPRESSION 'OTHERWISE' AND THE RIGHTS OF THE OTHER PARTNERS IN TH AT ASSET OF THE PARTNERSHIP ARE EXTINGUISHED. THAT WAS ALSO THE POSITION EARLIER BUT CONSIDERING THAT ON RETIREMENT THE PARTNER ONLY GOT HIS SHARE, IT WAS HELD THAT THERE WAS NO EXTINGUISHMENT OF RIGHT. CONSIDERING THE AMENDMENT, THERE IS CLEARLY A TRANSFE R AND IF, THERE BE A TRANSFER, IT WOULD BE SUBJECT TO CAPITAL GAINS TAX. 10 . THE CORE ISSUE BEFORE US IS WHETHER THE PROPERTY/PLOT OF LAND IN QUESTION WAS DISTRIBUTED OR TRANSFERRED BY THE ASSESSEE ON 10 - 04 - 2000 WHEN THE DEED OF DISSOLUTION WAS EXECUTED A ND OUR ANSWER IS NO AS PER THE DOCUMENT ON RECORD. WE FIND THAT THE SA ID PROPERTY REMAIN ED TO BE THE PROPERTY OF THE DISSOLVE D FIRM AND IT WAS SOLD BY THE ASSESSEE FIRM ON 27 - 03 - 2003. THE LAW IS WELL SETTLED THAT THE FIRM IN THE EYES OF LAW IS NOT A SEPA RATE LEGAL ENTITY BUT ULTIMATELY THE RIGHTS OR VESTED IN THE PARTNERS ONLY. THE INDIAN PARTNERSHIP ACT PROVIDE S THE EFFECT ON THE DISSOLUTION OF THE FIRM BY INCORPORATING THE DIFFERENT PROVISIONS LIKE SECTIONS 46, 47, 48, 49 AND 50 ETC. IN FACT THE ASSESS EES CASE IS SUPPORTED BY THE SALE DEED OF THE SAID PROPERTY DATED 29 - 03 - 2003 IN WHICH THE ASSESSEE FIRM IS SHOWN AS SELL ER NO. 1 ALONGWITH THE PARTNERS. THERE IS A CATEGORICAL AVERMENT IN THE SALE DEED THAT THE PARTNERS HAVE TAKEN A LOANS FROM THE KOLHAP UR MAHILA SAHKARI BANK AND ICHALKARANJI SAHKARI BANK AND 10 I TA NOS. 593, 594 & 595, S.BALMUKUND PAPER MARCHANT, BIYANI BHAGWATIDEVI & BIYANI BALKUMUD RAJARAM , KOLHAPUR HENCE THE SAID PROPERTY WAS DECIDED TO BE SOLD TO APPLY PROCEEDS TO REPAY SAID LOANS UNDER SEC. 45(4) I T IS NOT ONLY SUFFICIENT THAT THERE IS A DISSOLUTION BUT THERE MUST BE TRANSFERRED BY WAY OF DIS TRIBUTION OF THE ASSETS. WE FIND THAT IN ONE OF THE ASSESSMENT ORDER THE ASSESSING OFFICER HIMSELF ADMIT THAT THE DISTRIBUTION NEED NOT BE ON THE DATE OF DISSOLUTION. IT IS SEEN THAT THE ASSESSING OFFICER HAS WRONGLY APPLIED SEC. 2(47) (V) OF THE INCOME - TAX ACT BY OBSERVING THAT THE PARTNERS BY EXECUTING THE DEED OF DISSOLUTION HAVE BECOME ABSOLUTELY OWNERS ONE OF THE SHARE OF THE PROPERTY. SO FAR AS SEC. 2(47) (V) IS CONCERNED IT IS IN THE CONTEXT OF PART PERFORMANCE OF THE CONTRACT AS CONTEMPLATED U/S. 5 3A OF THE TRANSFER OF PROPERTY ACT, 1882 IN WHICH THE POSSESSION OF ANY IMMOVABLE PROPERTY IS GIVEN. 11. IN OUR OPINION BOTH THE PARTIES BELOW HAVE MISINTERPRETED THE PROVISIONS OF LAW AND BY DISCARDING THE FACTUAL ASPECT TAXED CAPITAL GAIN IN A.Y. 20 01 - 02. W E THEREFORE HOLD THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED TO BRING TO TAX THE CAPITAL GAIN IN HANDS OF THE ASSESSEE FIRM IN THE A.Y. 2001 - 02. WE FURTHER HOLD THAT THE PROPERTY WAS SOLD BY THE ASSESSEE FIRM IN THE A.Y. 2003 - 04 AND SO FAR AS TH E PRESENT P ROPERTY IS CONCERNED T HE SAID WAS NOT TRANSFERRED TO THE PARTNERS AT ANY TIME. AS TRANSFER CONTEMPLATES THE TRANSFERRING THE TITLE AND INTEREST IN THE SAID PROPERTY . W E THEREFORE ALLOW THE APPEAL FILED BY THE ASSESSEE FIRM AND GROUND NOS. 1 AN D 2 ARE ACCORDINGLY ALLOW ED . SO FAR AS GROUND NO. 3 IS CONCERNED IT S CONSEQUENTIAL. 12. NOW WE TAKE THE APPEALS FILED BY THE ASSESSEE PARTNERS BEING ITA NOS. 594 & 595/PN/2011 , THE FOLLOWING GROUNDS ARE TAKEN BY BOTH THE ASSESSEE WHICH ARE COMMON IN BOTH THE PARTIES: 1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. C.I.T. (A) WAS NOT JUSTIFIED IN RESORTING TO PROVISIONS OF S. 147 TO 11 I TA NOS. 593, 594 & 595, S.BALMUKUND PAPER MARCHANT, BIYANI BHAGWATIDEVI & BIYANI BALKUMUD RAJARAM , KOLHAPUR REOPEN THE ASSESSMENT FOR TAXATION OF ESCAPED INCOME. THERE WAS NO SUCH ESCAPEMENT OF ANY INCOME IN THE HANDS OF THE APPELLANT AS ANY CAPITAL GAIN THAT WAS ASSESSABLE IN THE HANDS OF THE FIRM IN WHICH THE APPELLANT WAS A PARTNER. THE REOPENING OF ASSESSMENT IS ILLEGAL, WITHOUT JURISDICTION AND CONSEQUENTIAL ASSESSMENT IS NOT TENABLE IN LAW. THE ASSES SMENT BE QUASHED. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW EVEN AFTER DISSOLUTION AND THEREBY RECOGNIZING THE INDIVIDUAL RIGHTS OF THE PARTNER CONTINUED AS 'DEFUNET FIRM OWNING A PARTICULAR A PARTICULAR ASSET WHICH WAS SOLD BY THE F IRM ONLY IN A.Y. 2003 - 04. THUS CAPITAL GAIN IS TAXABLE IN THE HANDS OF THE FIRM ONLY. THE ASSESSMENT OF CAPITAL GAIN MADE IN THE HANDS OF THE APPELLANT IS ILLEGAL AND BE QUASHED. 3) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. C.I.T . (A) WAS NOT JUSTIFIED IN HOLDING THAT ONLY DISPUTE IS WHETHER IT IS SHORT - TERM OR LONG TERM CAPITAL GAIN.' THE LD. C.I.T.(A) FAILED TO APPRECIATE THAT THE ONLY DISPUTE WAS TAXABILITY OF ANY CAPITAL GAIN IN THE HANDS OF THE APPELLANT. THE LD. C.I.T. (A) DECIDED THE ISSUE AGAINST APPELLANT WITHOUT APPLICATION OF MIND AND APPRECIATION OF LAW. THE ASSESSMENT BE QUASHED. 4) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE APPELLANT DENIES HIS LIABILITY TO PAY INTEREST U/S. 234 - A, 234 - B AND 234 - C OF THE ACT AND THE SAME BE DELETED. 13. IN THE CASE OF BOTH OF THESE ASSESSEE S THE RETURN OF INCOME FOR THE A.Y. 2003 - 04 WERE FILED ADMITTING TOTAL INCOME OF RS.2,79420 / - AND RS.1,08,426/ - . IT IS OBSERVED BY THE ASSESSING OFFICER THAT THESE ASSESSEE S WERE JOINTLY OWNED THE PROPERTY WHICH WAS PURCHASED BY THE M/S. S. BALKUKUND PAPER MART ON 20 - 12 - 1984 AND THE SAID PROPERTY WAS SOLD DURING THE FINANCIAL YEAR RELEVANT TO THE ASSESSMENT YEAR 2003 - 04 BUT NO CAPITAL GAIN WAS OFFERED. THE ASSESSING OFFICE R HAS OBSERVED THAT THESE ASSESSEES WERE THE PARTNERS OF M/S. S. BALKUKUND PAPER MART WHICH WAS DISSOLVED W.E.F. 01 - 04 - 2000 VIDE DEED OF DISSOLUTION DATED 10 - 04 - 2000 AND ALL THE ASSETS AND LIABILITIES WERE DISTRIBUTED BETWEEN THE SE TWO PARTNERS WHO ARE PR ESENT ASSESSEE S . THE ASSESSING OFFICER ALSO OBSERVED THAT THE PLOT OF LAND/PROPERTY IN QUESTION WAS SOLD BY THESE PARTNERS ON 29 - 03 - 2003. HOWEVER THESE ASSESSEE S OFFERED THE LONG TERM CAPITAL GAIN DURING THE ASSESSMENT YEAR 2004 - 05 INSTEAD OF A.Y. 2003 - 04 . THE ASSESSEE CONTENDED THAT THERE WAS NO DISSOLUTION IN FACT BUT IT 12 I TA NOS. 593, 594 & 595, S.BALMUKUND PAPER MARCHANT, BIYANI BHAGWATIDEVI & BIYANI BALKUMUD RAJARAM , KOLHAPUR WAS A MEMORANDUM OF UNDERSTANDING AND FIRM WAS NOT DISSOLVED . T HE ASSESSING OFFICER H E LD THAT AS PER DISTRIBUTION LIST M ENTIONED IN THE DEED OF DISSOLUTION BOTH THE PARTNERS HAVE TAKEN THE SHARE OF PLOT AND THAT AMOUNT TO THE DISTRIBUT ION OF ASSETS. 14. H E THEREFORE BROUGHT TO TAX THE CAPITAL GAIN IN HANDS OF THESE ASSESSEES BY REFERRING TO SEC. 2(47) R.W.S. 45 OF THE ACT BY HOLDING THAT THE TRANSFER OF THE PLOTS/PROPERTY IN QUESTION TOOK PLACE ON THE DATE OF DEED OF DISSOLUTION AND IT BECOME THE PROPERTY OF THESE ASSESSEES AND AS THE SAID PLOT OF LAND WAS SOLD ON 29 - 03 - 2003 FOR RS.27 LACS T HE CAPITAL GAIN HAS TO BE TAXED IN HANDS OF THESE ASSESSEES. WHILE DECIDING THE APPEAL FILED B Y THE ASSESSEE FIRM M/S. S. BALKUKUND PAPER MART BEING ITA NO. 593/PN/2011 WE HAVE HELD THAT THERE WAS NO TRANSFER BY WAY OF DISTRIBUTION OF THE PROPERTY/PLOT OF LAND IN QUESTION ON THE EXECUTION OF THE DEED OF DISSOLUTION DATED 10 - 04 - 2000. WE HAVE ALSO H ELD THAT THE CAPITAL GAIN IS TAXABLE IN THE A.Y. 2003 - 04 IN HANDS OF THE ASSESSEE FIRM AS THE FIRM HAS SOLD, AS PER ON DOCUMENTS RECORD , THE SAID PLOT OF LAND ON 27 - 03 - 2003 . AS WE HAVE HELD THAT THE PLOT WAS NEVER TRANSFERRED TO THE PARTNERS ON EXECUTI ON OF THE DEED OF DISSOLUTION , T HERE IS NO QUESTION TO TREAT THE SAID PLOT OWNED BY THESE TWO ASSESSEES IN THE CAPACITY AS THE PARTNERS OF M/S. S. BALKUKUND PAPER MART, THE ASSESSEE FIRM AND HENCE , THE ASSESSING OFFICER WAS NOT JUSTIFIED IN BRINGING TO TAX TH E CAPITAL GAIN IN HANDS OF THESE ASSESSEES IN THE A.Y. 2003 - 04. WE THEREFORE DECIDE THE ISSUE IN FAVOUR OF THESE ASSESSEES. 15. SO FAR AS THE GROUND NO. 1 IS CONCERNED THE ASSESSEE HAS CHALLENGED THE LEGALITY AND VALIDITY OF REOPENING U/S. 147 . A S THE I SSUE ON MERIT IS DECIDED IN FAVOUR OF THE ASSESSEE S THAT NO CAPITAL GAIN IS TAXABLE ON THE FACTS ON THIS PARTICULAR CASE IS IN HANDS OF THE ASSESSEE S IN THE A.Y. 2003 - 04 , W E DO NOT CONSIDER IT NECESSARY TO ADJUDICATE THE 13 I TA NOS. 593, 594 & 595, S.BALMUKUND PAPER MARCHANT, BIYANI BHAGWATIDEVI & BIYANI BALKUMUD RAJARAM , KOLHAPUR LEGAL GROUND TAKEN BY THE ASSESSEE BEING GROUND NO. 1. SO FAR AS GROUND ON CHARGEABILITY OF THE INTEREST U/S. 234 - A, 234 - B AND 234 - C. THE LEARNED COUNSEL SUBMITS THAT THOSE ARE CONSEQUENTIAL HENCE NO SPECIFIC ADJUDICATION IS MADE. 16. IN THE RESULT, ALL THE THREE APPEALS ARE ALLOWED. PRONOUNCED IN THE OPEN COURT ON 24 - 06 - 20 1 3 SD/ - SD/ - ( G.S. PANNU ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER RK /PS PUNE , DATED : 24 TH JUNE, 20 1 3 COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE CI T(A), KOLHAPUR 4 THE CIT - I/II, KOLHAPUR/CIT(C), PUNE 5 THE DR, ITAT, B BENCH, PUNE . 6 GUARD FILE. //TRUE COPY// BY ORDER PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE