9911796707
TMI Blog2000 (9) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... as been referred for our opinion: "Whether, on the facts and in the circumstances of the case, the impugned amount of Rs.22,400 received by the assessee on retirement as a result of revaluation of the assets is not taxable under section 28(iv) or section 41(2) of the Income-tax Act, 1961?" The facts giving rise to this reference are as under: The assessee along with his father, Babubhai alia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved by the assessee was taxable as income under section 28(iv). of the Act. In the appeal preferred by the assessee, the Appellate Assistant Commissioner took the view that the amount received by the assessee as a partner was not only taxable under section 28(iv) but also taxable under section 41(2) of the Act. The assessee then approached the Income-tax Appellate Tribunal. The Tribunal, rely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'Profits and gains of business or profession',-. . . (iv) the value of any benefit or perquisite, whether convertible into money or not, arising from business or the exercise of a profession." Without reference to any case law on the subject, in our considered opinion, on the plain language of clause (iv) of section 28, the amount received by the assessee as a partner in the erstwhile partner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value, if any, exceed the written down value, so much of the excess as does not exceed the difference between the actual cost and the written down value shall be chargeable to income-tax as income of the business or profession of the previous year in which the moneys payable for the building, machinery, plant or furniture became due." For application of sub-section (2) of section 41, monetary b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easoning to the present case, as a partner of the firm, on separation of four other partners of the firm, whatever monetary benefit the assessee received as the proportionate value of his share and assets, was not money received from any "sale" within the meaning of section 41(2) and, therefore, the said amount received by him as a partner cannot be subjected to tax as profits under the said secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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