9911796707
TMI Blog2011 (11) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Assessing Officer that the impugned transaction would attract capital gain under Section 45(4) of the Income Tax Act, 1961 (hereinafter referred to as the 'Act'). 2. The material facts leading up to this appeal are as follows: The assessee-company is in the business of garment exports. It filed annual return income for the assessment year 1995-96 on 31-10-1995 declaring a total income of Rs. 73,45,020/- which was processed under Section 143(1)(a) of the Act and scrutiny under Section 143(3) completed on 16-3-1998. The case was re-opened on the basis of revenue audit objection as according to the revenue, there was transaction of immovable property and to that extern there was capital gain. Thereafter, after enquiry, notice w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n rendered by them in Unity Care & Health Services (supra) case, held that there was no transfer of capital asset and therefore, provisions of Section 45(4) of the Act would not be attracted and accordingly allowed the appeal in part, Being aggrieved, this appeal is filed by the revenue. 3. The learned counsel appearing for the revenue contended that ITAT was not justified in relying upon the decision of the ITAT in Unity Care & Health Services (supra) and the said judgment is not applicable to the facts of the case though the said decision is confirmed by this Court in ITA No.3170/2005 by order dated 5-7-2010. The learned counsel submitted that there was transfer of capital asset on 29-3-1995 by making book entry and thereafter there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /189 Taxman 171 (Kar.) and CIT v. A.N. Naik Associates [2004] 265 ITR 346/136 Taxman 107 (Bom.) in support of his contention that impugned transaction would attract capital gain. 5. The appeal has been admitted on 28-9-2007 to consider the substantial question of law as framed in ITA No. 1414/2006. However, learned counsel for the parties submit that ITA No. 1414/2006 is not connected to this appeal as the subject-matter of ITA No. 1414/2006 is not applicable to the facts of this case. 6. Having regard to the contentions of the parties, the following substantial question of law arises for determination in this case: "Whether the order of the ITAT allowing the appeal filed by the assessee and setting aside the order passed by the first ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been shown as asset of the joint stock company and the conversion was on 3-4-1995. However, in the case of Unity Care & Health Services (supra), it was a partnership firm registered by eight partners on 2-10-2000 under the Partnership Act and on 3-10-2000, it got registered under the Companies Act. Before registration or conversion as a company, the assets of the partnership firm were revalued. The total value arrived at such revaluation was Rs. 20,03,21.670/-. The written down value was Rs. 3,96,67.634/-. As on 2-10-2000. after depreciation, the firm did not declare any capital gains on transfer of assets from partnership firm to the company which is a separate entity and therefore, the Assessing Officer was of the view that due to convers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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