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2019 (3) TMI 584 - HC - Income TaxCapital gain computation - taxability in the hands of retiring partner s - retirement from the partnership firm - HELD THAT - We find that impugned order of the Tribunal placed reliance upon the decision of this Court in Prashant Joshi s case 2010 (2) TMI 271 - BOMBAY HIGH COURT and Riyaz Sheikh s case 2013 (12) TMI 248 - BOMBAY HIGH COURT to hold that amount received by a partner on his retirement and the partnership firm is not subjected to tax in the retiring partner s hands in view of Section 45(4) of the Act. The liability, if any, to pay the tax is on the partnership firm in view of Section 45(4) of the Act. Besides, the duration of a person being a partner in the firm does not decide the applicability of Section 45(4) of the Act, as it is not so provided therein.
Issues:
Challenge to the order of the Income Tax Appellate Tribunal regarding the taxability of the amount received by the assessee on retirement from a partnership firm under the head of capital gain. Analysis: The case involved an appeal challenging the order of the Income Tax Appellate Tribunal related to the taxability of the amount received by an individual assessee on retirement from a partnership firm for Assessment Year 2006-2007. The main question raised was whether the amount received by the assessee on retirement from the partnership firm should be taxable under the head of capital gain in the hands of the partner. The Respondent, an individual, had joined the partnership firm in 2005 and retired in 2016, receiving a significant sum from the firm. The Assessing Officer had taxed this amount, leading to an appeal by the Respondent to the Commissioner of Income Tax (Appeals) and subsequently to the Tribunal. The Tribunal, in its order, relied on Section 45(4) of the Income Tax Act, which states that amounts received by a partner on retirement from a partnership firm are not taxable as capital gains in the partner's hands; instead, the partnership firm is liable to pay the tax. The Tribunal referred to previous court decisions to support its stance, including the cases of Prashant S Joshi v/s. Income Tax Officer and Commissioner of Income Tax v/s. Riyaz A Sheikh. The Tribunal also noted that the assessment of the partnership firm had been reopened to tax the amounts paid to the Respondent upon her retirement. Consequently, the Tribunal allowed the appeal of the Respondent. The Revenue, dissatisfied with the Tribunal's decision, argued that the Respondent should be liable to pay tax on the amount received upon retirement from the partnership firm, as she became a partner in the previous year and retired in the same Assessment Year. However, the High Court upheld the Tribunal's decision, emphasizing that Section 45(4) of the Act dictates that the liability to pay tax on amounts received by a partner on retirement lies with the partnership firm, not the retiring partner. The Court reiterated that the duration of a person being a partner in the firm does not impact the application of Section 45(4) of the Act. As the issue was settled by previous court decisions, the Court found no substantial question of law and dismissed the appeal accordingly.
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