1985 (7) TMI 13 - HC - Income Tax

Summary

Issues:
1. Whether the transfer of a petrol tanker from an individual business to a partnership firm, where the individual also becomes a partner, amounts to a transfer under section 2(47) and if the difference between the written down value and the amount received by the individual from the firm is assessable as profit under section 41(2) of the Income-tax Act.

Analysis:
The case involved the transfer of a petrol tanker by an individual to a partnership firm, where the individual also became a partner. The Income-tax Officer treated this transfer as a sale and calculated a profit under section 41(2) of the Act, which was added to the individual's total income. However, the Appellate Assistant Commissioner and the Income-tax Appellate Tribunal held that no sale or transfer occurred, therefore deleting the profit amount from the individual's income.

The Commissioner of Income-tax sought a reference to the High Court under section 256(2) of the Act, arguing that the transfer of the petrol tanker to the partnership firm constituted a sale, making the profit assessable under section 41(2). The Tribunal had refused to make a reference, citing previous Supreme Court decisions that clarified the nature of transfers to partnership firms where the partner is the transferor.

The High Court analyzed the legal concept of a partnership firm, emphasizing that a partner transferring an asset to a partnership firm, where the partner is also a member, does not involve a sale as the firm is not a separate legal entity but a collective of partners. The court referred to Supreme Court decisions that established that such transfers do not amount to sales, and therefore, the profit calculated under section 41(2) was not applicable in this scenario.

Ultimately, the High Court dismissed the application for reference, stating that the issue was settled by previous Supreme Court judgments, and there was no arguable question to refer to the court. The court affirmed that no transfer or sale occurred when a partner contributes an asset to a partnership firm where they are also a member, as the firm and the partner are not distinct legal entities.