2000 (9) TMI 24 - HC - Income Tax

Summary

Issues:
Taxability of amount received on retirement due to revaluation of assets under section 28(iv) or section 41(2) of the Income-tax Act, 1961.

Analysis:

Issue 1: Taxability under Section 28(iv) of the Income-tax Act, 1961

The question raised in the reference was whether the amount of Rs.22,400 received by the assessee on retirement as a result of revaluation of assets is taxable under section 28(iv) of the Income-tax Act, 1961. Section 28(iv) pertains to the value of any benefit or perquisite arising from business or profession. The court analyzed the plain language of the provision and concluded that the amount received by the assessee upon the separation of some partners cannot be considered a benefit or perquisite arising from the business or exercise of a profession. The court emphasized that the amount was received when partners separated and assets were divided, which does not fall under the scope of section 28(iv).

Issue 2: Taxability under Section 41(2) of the Income-tax Act, 1961

The Appellate Assistant Commissioner held that the amount received by the assessee was taxable under not only section 28(iv) but also under section 41(2) of the Act. However, the Tribunal disagreed with this view. Section 41(2) deals with the taxation of excess money received from the sale, discard, demolition, or destruction of assets used for business or profession. The court noted that the monetary benefit received by the assessee as a partner upon the separation of partners and division of assets did not constitute income from the business in terms of section 41(2). The court referred to a previous judgment where it was held that the allocation of land or money to a partner in lieu of their share does not constitute a sale by the firm to the partner. Therefore, the amount received by the assessee in this case was not taxable as profits under section 41(2).

In conclusion, the court answered the question in favor of the assessee, stating that the amount received on retirement due to the revaluation of assets was not taxable under either section 28(iv) or section 41(2) of the Income-tax Act, 1961. The reference was disposed of accordingly, with no order as to costs.