9911796707
TMI Blog1994 (5) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... er into a firm ? " It may be stated that keeping in view the factual background of the case, the question referred does not clearly bring out the controversy and, therefore, requires to be reframed as under : " Whether the Tribunal was right in law in holding that contribution in the form of plot of land by the assessee to the partnership firm amounted to a transfer within the meaning of section 2(47) of the Act, resulting in capital gains chargeable to tax ? " At the outset, Mr. Anoop Sharma, learned counsel for the assessee, pointed out that the answer to the question stands concluded by the decision of the Supreme Court in Sunil Siddharthbhai v. CIT [1985] 156 ITR 509. Mr. Rajendra, learned standing counsel for the Revenue, though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while evading tax on a capital gain. The Income-tax Officer will 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 need for the partnership firm for such capital contribution from the assessee. All these and other pertinent considerations may be taken into regard when the Income-tax Officer enters upon a scrutiny of the transaction, for, in the task of determining whether a transaction is a sham or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of case so as to bring out the other aspect of the controversy now raised by him, viz., whether the transaction of contribution to land as capital is a genuine contribution to a real partnership or merely a ruse to avoid capital gains. The question which arises for consideration is whether the issue now raised by standing counsel for the Revenue could be considered as another aspect of the question referred to us, entitling us to go into it. For it, it would be necessary to travel beyond the statement of the case drawn up by the Tribunal (not a normal practice) and bring out some material facts from the annexures forming part of the statement of the case not included therein. During the course of assessment proceedings for the assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t appeal preferred by the assessee, the Commissioner of Income-tax (Appeals) went deeply into the question as to whether the transaction was a transfer within the meaning of section 2(47) of the Act and concurred with the Income-tax Officer in taxing short-term capital gains in the hands of the assessee. The Commissioner of Income-tax (Appeals), however, did not go into the question as to whether the entire exercise by the assessee was a facade created for evading tax. Relying on the decision of the Supreme Court in CIT v. Hind Construction Ltd. [1972] 83 ITR 211, he disagreed with the Income-tax Officer that the resultant surplus could be treated as the assessee's profit from business. The assessee carried the matter further in appeal to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
