TMI Blog2008 (12) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... gain. The Tribunal held against the assessee. Held that- individual partner having no independent right over the property of the firm. Since the assessee sold the property within 3 days of acquiring the property the gain will be treated as short term capital gain. - 148 of 2008. - - - Dated:- 1-12-2008 - RAMACHANDRAN NAIR C. N., HARUN-UL-RASHID JJ T.M. Sreedharan and V.P. Narayanan for the appellant. P.K.R. Menon and Jose Joseph for the respondent. JUDGMENT The judgment of the court was delivered by C. N. Ramachandran Nair J.- The question raised in this appeal filed by the assessee is whether the assets sold by him, viz., the hospital building and land on April 18, 2001 is a short-term capital gain or a long-term cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome-tax Act (hereinafter referred to as the "IT Act") and contended that if the period of holding of the assets is more than 36 months, the capital gain is to be dealt with as "long-term capital gain". The above section defines short-term capital asset as capital asset held by the assessee for not more than 36 months immediately preceding the date of its transfer/sale. Explanation 1(i)(b) to section 2(42A) to the Income-tax Act provides certain exception to this position. It reads as follows : "In the case of a capital asset which becomes the property of the assessee in the circumstances mentioned in sub-section (1) of section 49, there shall be included the period for which the asset was held by the previous owner referred to in the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the partnership later taken over by the assessee on the dissolution of the firm can be treated as the assessee's asset for the reason that he was a partner of the said firm. Section 14 of the Indian Partnership Act, 1932 defines property of the firm as follows : "The property of the firm.-Subject to contract between the partners, the property of the firm includes all property and rights and interests in property originally brought into the stock of the firm, or acquired, by purchase or otherwise, by or for the firm, or for the purposes and in the course of the business of the firm, and includes also the goodwill of the business." 6. From the above it is clear that the individual partners have no independent right over the properly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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