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2011 (11) TMI 461 - HC - Income TaxCapital Gain - transfer of Immovable Property to the partners of the firm - Held That:- ITAT is the final authority to decide the question of fact. Both the AO and the first appellate authority have held that since there was transfer of capital asset on 29-3-1995 in favour of the new partners of the firm, the same would attract provisions of Section 45(4) and tax has to be paid on the capital gain. However the ITAT set aside the order passed by the FAA and AO only on the ground that in the earlier order passed by the ITAT in Unity Care & Health Services it has been held that on similar facts that the transaction would not attract Section 45(4) . The facts of present case are clearly different from the case as relied by ITAT. The ITAT has not gone into other aspects which are in the reasoning given by the first appellate authority and the Assessing Officer while holding that the capital gain under Section 45(4) is attracted and the assessee is liable to pay tax on the same and therefore the order passed by the ITAT is perverse and arbitrary and cannot be sustained and liable to be set aside. As transfer of immovable property which would attract capital gain under Section 45(4) is a pure question of fact and the same is to be decided by the ITAT the matter is to be remitted to the ITAT for fresh disposal in accordance with law - in favour of the revenue.
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