2010 (10) TMI 828 - HC - Income Tax

Profit of the sale of the firm for the assessment year 1995-96 - whether not assessable to capital gains tax u/s 45(1) or section 45(4) - AO held that the income which was received by accepting the highest bid of Rs.92 crores was paid to the erstwhile 9 partners and highest bid was offered by erstwhile 3 partners and it is also clear that the firm M/s.MGBW had dissolved on 6.12.1987 itself and it was not in existence thereafter and returns were being filed by the erstwhile partners in view of the direction issued by this court in the Company Petition as referred to above and the Assessing Officer has passed an order of protective assessment against the firm represented by its partners - Held that - The firm-MGBW was dissolved on 6.12.1987 and that the outgoing partners of the firm are liable for capital gain u/s 45(1) of the Act and not the firm and in view of the said findings thereunder, thus to hold that the order passed by the ITAT is justified and does not call for interference in those appeals - substantial questions of law against the revenue and in favour of the assessee

Issues Involved:
1. Application of previous Tribunal decision to the current case.
2. Validity of the partnership deed dissolution date and its impact.
3. Assessability of profit from the sale of the firm under capital gains tax.

Issue-wise Detailed Analysis:

1. Application of Previous Tribunal Decision:
The first issue concerns whether the Tribunal was correct in applying the decision rendered in ITA No.974/B/98, considering the assessment in the present case was made in the status of a firm, whereas in the previous case, it was made in the status of an Association of Persons (A.O.P.). The Tribunal held that the previous case was identical to the present one, despite the difference in status. The High Court upheld this view, finding no substantial difference that would alter the applicability of the previous decision.

2. Validity of Partnership Deed Dissolution Date:
The second issue revolves around the Appellate Commissioner's determination that the partnership deed dated 30.6.1982 was dissolved on 6.12.1987 by virtue of a court order dated 14.6.1991, which continued until 17.11.1994 for the assessment year 1995-96. The court noted that the partnership was dissolved by efflux of time on 5.6.1987, extended by mutual agreement until 5.12.1987, and formally dissolved on 6.12.1987. The High Court confirmed the Appellate Commissioner's decision, emphasizing that the firm was not in existence during the relevant assessment year and that the dissolution date was valid and supported by legal evidence.

3. Assessability of Profit from the Sale of the Firm:
The third issue pertains to whether the profit from the sale of the firm for the assessment year 1995-96 is assessable to capital gains tax under section 45(1) or section 45(4) of the Income Tax Act. The Assessing Officer initially held that the partners were liable to pay capital gains tax under section 45(4), but the Appellate Commissioner reversed this, stating that the outgoing partners were liable under section 45(1) and not the firm, as it had dissolved on 6.12.1987. The Tribunal upheld this view, and the High Court agreed, noting that the firm was dissolved and the income from the sale was received by the erstwhile partners, making them liable for capital gains tax under section 45(1).

Conclusion:
The High Court dismissed the appeals, affirming the Tribunal's order that the firm was dissolved on 6.12.1987, and the outgoing partners were liable for capital gains tax under section 45(1). The substantial questions of law were answered against the revenue and in favor of the assessee. The appeals ITA Nos.1305/2006, 1303/2006, 1301/2006, 12293/2006, 1288/2006, 1286/2006, and 1290/06 were dismissed.

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