2008 (2) TMI 343 - HC - Income Tax

Transfer - Section 2(47) - tax on capital asset u/s 45(4) dissolution of firm consisting of two partners held that the transaction resulted in dissolution of the firm and partner or partners getting rights over the immovable property. Subsequent reconstitution of the firm does not affect the liability of the dissolved firm to be assessed for capital gains in terms of Section 45 (4) - hold that the transaction in both the cases is transfer within the meaning of Section 2(47)(vi)

Summary

Issues:
Interpretation of Section 2(47) and Section 45(4) of the Income-tax Act in relation to the transfer of capital assets during the dissolution and reconstitution of a firm.

Analysis:
The High Court of Kerala addressed the common question raised by the Income-tax Department regarding the interpretation of "transfer" under Section 2(47) of the Income-tax Act in relation to the distribution of assets during the dissolution of a firm. The court considered the case of a partnership firm that was dissolved, and one partner took over the land and factory building under the deed of dissolution. The court examined whether this distribution of assets constituted a "transfer" attracting tax on capital assets under Section 45(4) of the Act. The Tribunal had held that there was no transfer as defined in Section 2(47) of the Act, and consequently, no tax on capital gains was applicable. The court analyzed the provisions of Section 2(47) and Section 45(4) of the Act to determine the scope of the term "transfer" and the tax liability arising from the distribution of capital assets on the dissolution of a firm.

The court referred to relevant legal provisions under Section 2(47) and Section 45(4) of the Income-tax Act to understand the definition of "transfer" and the taxation of capital gains in cases of firm dissolution. The court highlighted that Section 2(47)(vi) of the Act covers agreements or arrangements resulting in the transfer of assets or enabling enjoyment of immovable property. The court emphasized that if an agreement or deed provides for the relinquishment of rights over assets, such as immovable property, it constitutes a transfer. In this case, the dissolution deed clearly outlined the transfer of land and factory building to one partner, making them the absolute owner of the property.

Furthermore, the court examined another case involving the reconstitution of a firm after its dissolution, where one partner assigned their rights in the assets to other partners. The court concluded that the reconstitution did not negate the liability under Section 45(4) for capital gains, as the dissolved firm remained liable for assessment under this provision. The court cited decisions from various High Courts supporting the view that transactions resulting in the distribution of assets during firm dissolution constitute transfers under Section 2(47)(vi) of the Act.

In conclusion, the High Court allowed the appeals filed by the Income-tax Department, setting aside the Tribunal's orders on the issue of transfer during firm dissolution. However, the court directed the Tribunal to address the remaining issues, particularly those related to valuation, and dispose of the appeals promptly. The court's decision clarified the interpretation of the relevant provisions of the Income-tax Act concerning the taxation of capital gains arising from the distribution of assets on the dissolution and reconstitution of a firm.