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TMI Blog1995 (9) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... 256(2) of the Income-tax Act, 1961, for referring the following two questions for the opinion of this court : " 1. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in holding that the onus to prove that the transfer was not effected as a device or ruse to convert the personal asset into money and evade tax on capital gains lies on the Revenue ? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he firm was genuine or not and whether the transfer by the partner of his personal asset to the partnership firm represented " a genuine intention to contribute to the share capital of the firm for the purpose of carrying on the partnership business ". The Supreme Court pointed out as follows : " If the transfer of the personal asset by the assessee to a partnership in which he is or becomes a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be entitled to consider all the relevant indicia in this regard, whether the partnership is formed between the assessee and his wife and children or substantially limited to them, whether the personal asset is sold by the partnership firm soon after it is transferred by the assessee to it, whether the partnership firm has no substantial or real business or the record shows that there was no real ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal observed as follows : " Although the Income-tax Officer did not have the advantage of the Supreme Court's decision in Sunil Siddharthbhai's case [1985] 156 ITR 509, as it was decided only on the 27th September, 1985, while the assessment order was passed on March 28, 1985, yet in view of the law as it existed at the time of the first appeal which was duly taken into account by the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in holding that the onus to prove that the transfer was not effected as a device or ruse to convert the personal asset into money and evade tax on capital gains lies on the Revenue ? 2. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in not remitting the matter back to the file of the Income-tax Officer to examine whether the transfer was a device ..... X X X X Extracts X X X X X X X X Extracts X X X X
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