2003 (11) TMI 44 - HC - Income Tax

Investment allowance transfer firm dissolved - Whether the appellant assessee had contravened section 155(4A) and/or section 32A, sub-section (5), by reason of constitution of a new firm comprising of all its original partners except the deceased partner, and the widow of the deceased partner, which firm had taken over all the assets and liabilities of the firm which was dissolved on October 26, 1987, on the death of the father (the founder of the firm) that had been founded on November 9, 1976, and had comprised of himself, his three sons and his two daughters. Whether investment allowance was rightly disallowed Held, no

Issues:
1. Interpretation of sections 155(4A) and 32A(5) regarding the constitution of a new firm comprising original partners.
2. Application of section 155 in the case of transfer of assets and liabilities from an old firm to a new firm.
3. Examination of legal precedents regarding dissolution of a firm and transfer of assets.
4. Analysis of the relevance of investment allowance utilization in relation to section 155.
5. Consideration of the definition of "transfer" under section 34(3)(b) in the context of firm dissolution.
6. Evaluation of the Tribunal's decision on the contravention of section 155 and section 32A.

Detailed Analysis:
1. The judgment addressed the issue of whether the appellant had contravened sections 155(4A) and 32A(5) by constituting a new firm with original partners excluding a deceased partner. The firm continued the same business after the dissolution of the old firm due to the death of the founder. The Deputy Commissioner withdrew the investment allowance claimed by the old firm against the reconstituted firm, alleging a transfer of assets and liabilities.

2. The Commissioner, on appeal, found no infringement of section 34(3)(a) as the old firm had fully utilized the investment allowance within the allowed period. The Tribunal, however, held that the new firm could not be seen as a continuation of the old one and deemed the transfer of assets as a contravention of section 155(4A). It also invoked section 155(4B) despite not being raised by the Deputy Commissioner.

3. Legal precedents, including the cases of Malabar Fisheries Co. and S.V. Chandra Pandian, were cited to establish that dissolution of a firm does not result in a transfer of assets. The court emphasized that no transfer occurred upon the dissolution of the old firm in this case, thereby negating any contravention of section 155(4A) or 32A(5).

4. The judgment clarified that the provisions of section 155(4A)(b) and 32A(5)(b) were irrelevant as the old firm had utilized the investment allowance for purchasing new machinery before dissolution. The court highlighted that the obligation to utilize the investment reserve lay with the assessee who had obtained the benefit, which was fulfilled in this case.

5. The interpretation of the term "transfer" under section 34(3)(b) was analyzed in light of the Narang Dairy Products case, which involved the exclusive hiring of machinery. The court differentiated between hiring and transfer, emphasizing that the dissolution of a firm does not entail a transfer of assets.

6. Ultimately, the Tribunal's decision was overturned as it failed to ascertain the facts properly. The judgment emphasized that section 155 prohibits transfers by the assessee who received the investment allowance benefit, not by other partners post-dissolution. The orders of the Tribunal and Assessing Officer were set aside, and the appeal was allowed with costs awarded to the appellant.

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