2014 (5) TMI 324 - HC - Income Tax

Genuineness of the existence of partnership Transfer of capital asset - Held that - The assessees did not place on record the original partnership deed or a Certificate of its Registration at any point of time - They claim that though the partnership firm was formed in 1988, it was registered with the Registrar of Firms only in 2003 i.e., after the lapse of 15 years - Though they so claimed, they did not produce Certificate of Registration before the authorities - It has come on record that subsequent to the Retirement-cum-Reconstitution Deed of partnership dated 22.5.2004, the landed properties were transferred to M/s.Prestige Estate Project Private Limited by the firm vide agreement dated 23.12.2005 - The agreement to sell was executed not only by the firm but also by the assessees - the Tribunal rejected the claim of the assessees that they received the amounts not as consideration for transfer of their lands but by way of retirement as partners in the firm there is no reason to interfere in the order of the Tribunal no substantial question f law arises for consideration Decided against Assessee. Validity of notice u/s 148 of the Act Reopening of assessment Held that - The assessee-wife had declared her total income of ₹ 1,37,990/- for the assessment year 2005-06 and it was processed u/s 143(1) of the Act AO noticed that the assessee-wife had also received a sum of ₹ 2,90,00,000/- during the assessment year 2004-05 from Srihari Khoday as sale consideration for transfer of property the notice issued u/s 148 of the Act cannot be said to be invalid Decided against Assessee.

Summary

Issues:
1. Validity of finding regarding genuineness of partnership firm.
2. Tax liability on transfer of capital asset.
3. Validity of notice issued under Section 148 of IT Act for reopening assessment.

Analysis:
1. The judgment concerns two Income Tax Appeals arising from separate orders passed by the Income Tax Appellate Tribunal, Bangalore Bench, pertaining to the Assessment year 2005-06. The appellants in both appeals are husband and wife, and the facts leading to the orders are common, resulting in a joint disposal of the appeals.

2. The primary issue revolves around the genuineness of a partnership firm, M/s. Highland Enterprise, formed by the husband and wife with another partner. The firm was purportedly created for construction and land development activities, with the assessees contributing their respective landed properties as capital. However, the firm did not engage in any business activities until its reconstitution in 2004, leading to questions regarding the firm's legitimacy.

3. The Assessing Officer, during the assessment of the husband, noted a substantial sum received by the wife in the same financial year. This led to the assessment order treating the partnership as non-genuine and considering the amounts received by both assessees as capital gains. The absence of original partnership deed or registration certificate, coupled with the transfer of properties to another entity, raised doubts about the nature of transactions and the legitimacy of the firm.

4. The judgment also addresses the tax liability arising from the transfer of capital assets by the assessees, with the authorities rejecting claims that the amounts received were not consideration for land transfer but retirement benefits. The court upheld the findings of the lower authorities, emphasizing the lack of substantial legal questions in the assessees' appeals regarding these matters.

5. Regarding the third issue, the validity of the notice issued under Section 148 of the IT Act for reopening the wife's assessment, the court found the reasons recorded for reopening to be valid and dismissed the appeals. The court highlighted that the information received regarding undisclosed income justified the reopening, indicating no procedural irregularities.

6. In conclusion, the High Court dismissed both appeals, affirming the lower authorities' findings on the partnership firm's genuineness, tax liability on capital asset transfer, and the validity of the notice for reopening the assessment. The judgment underscores the importance of substantiating claims with proper documentation and complying with tax regulations to avoid disputes and reassessments.