TMI Blog2011 (11) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - IT Appeal No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the partners of the firm would amount to transfer of capital asset which would attract capital gain under Section 45(4) of the Act. and directed !o issue demand notice accordingly. Being aggrieved by the same, the assessee preferred an appeal before the first appellate authority - the Commissioner of Income Tax (Appeals)-I, Bangalore in ITA No. 554/R-11/CIT(A)-I/02-03 and the first appellate authority by order dated 31-3-2004 dismissed the appeal and confirmed the order passed by the Assessing Officer. Being aggrieved by the same, the assessee preferred an appeal in ITA No. 1062/Bang./2004 before the ITAT contending that re-opening of the assessment was illegal and the impugned transaction would not attract under Section 45(4) of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 45(4) of the Act, the same would attract capital gain and therefore, the order passed by the ITAT is liable to be set aside. 4. The learned counsel appearing for the respondent submitted that the transfer of capital asset which had been put into partnership by the partners has been done on 29-3-1995 itself and the firm was re-constituted into a joint stock company by obtaining order of the Company Court and the decision in Unity Care Health Services (supra) is applicable to this case. In support of his contention, he relied upon the decision of this Court in Jansons v. CIT [1985] 154 ITR 432/[1984] 17 Taxman 330 (Kar.). The learned counsel submitted that there is no transfer of conveyance which would attract the provisions under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment of the ITAT in M/s. Unity Care Health Services which has been confirmed in ITA No. 3170/2005 by order dated 5-7-2010 is perverse and arbitrary and unsustainable." 7. We have given careful consideration to the contentions of learned counsel appearing for the parties and scrutinised the material on record with reference to the abovesaid substantial question of law. 8. It is well-settled that the ITAT is the final authority to decide the question of fact. Both the Assessing Officer 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) of the Act and tax has to be paid on the capital gain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of this transfer. However, in the present case, as already narrated above, facts are clearly different. It is well-settled that the said decision cannot be allowed to dehorse the facts of the case or the facts and circumstances under which each case is decided, Even though the order passed by the ITAT in Unity Care Health Services (supra) has been confirmed by this Court in ITA No. 3170/2005 filed by the revenue by order dated 5-7-2010, it is clear that facts under which the finding was given that the impugned transaction would not amount to capital gain is entirely different from the one in the present case as narrated above and therefore the ITAT was not at all justified in relying upon the decision of the Unity Care Health Service ..... X X X X Extracts X X X X X X X X Extracts X X X X
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