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TMI Blog2014 (4) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... . Automobiles (P) Ltd'. This is an error which needs to be rectified. 3. The ld.representative for the assessee further submitted that grounds No.3, 4, & 5 of the appeal were not disposed of. The ld.representative submitted that balances in the current accounts of the partners are current liabilities of the firm and not capital which the partners are entitled to withdraw any time. The balance in the current account is not capital of the firm. According to the ld.representative, the firm is bound to pay the current account balance to the partners as liability. According to the ld.representative, the department has accepted the partners' loan account as liability, however, the partners' current account was not accepted as liability. This Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asset of the firm was transferred to the company as a result of succession of the firm by the company, incorporating certain conditions, the ld.representative clarified that this is applicable only if section 2(47) is applicable. When section 2(47) is not applicable, according to the ld.representative, the provisions of section 47(xiii) are not applicable, therefore, the order of this Tribunal is an error which needs to be rectified. 4. The ld.representative further submitted that the assessee has raised one more ground with regard to indexation of the cost of acquisition. This was not disposed of by the Tribunal. On a query from the bench, whether, this ground was raised before the assessing officer, the ld.representative clarified that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le partners, as it is shown as if the partners advanced loan to the private limited company. This is an indirect method of transfer of property by applying the accounting technique to avoid tax on capital gain contrary to the provisions of the Income-tax Act. When the Tribunal specifically found that this is an accounting technique adopted by the partnership firm to avoid capital gain tax, we are of the considered opinion that there is no error, much less, a prima facie error, within the meaning of section 254(2) of the Act. The arguments advanced by the ld.representative for the assessee may be another way of looking at the issue. As far as this Tribunal is concerned, the entire provisions of the Income-tax Act have to be read together and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shares in the hands of the erstwhile partners / shareholders. Therefore, the decision of this Tribunal in K.V. Mohammed Zaker (supra) may not be applicable to the facts of the present case. Moreover, the decision of the Tribunal in K.V. Mohammed Zaker (supra) was not brought to the notice of the Tribunal when the appeal of the assessee was heard. Shares were not allotted in respect of revaluation amount of capital asset. Therefore, we are of the considered opinion, the decision of this Tribunal in K.V. Mohammed Zaker (supra) is not applicable to the facts of this case. 9. Now coming to the non disposal of grounds 3, 4 & 5 is concerned, this Tribunal is of the considered opinion that the Tribunal examined the issue elaborately, after consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 234B and 234C of the Act. The levy of interest u/s 234B and 234C on the capital gain has to be computed in accordance with law while giving effect to the order of this Tribunal. This Tribunal, at this stage, cannot compute the interest. The assessing officer shall consider whether the assessee is liable to pay interest u/s 234B and 234C on the capital gain and thereafter compute the same in accordance with law. 12. Now coming to the name of the assessee, apparently, in the cause title, the assessee has mentioned the name as 'K.T.C. Automobiles'. However, at column No.10 of the appeal memo the assessee mentioned the name as 'K.T.C. Automobiles (P) Ltd'. This may be the reason for incorporating the name of the assessee as 'K.T.C. Automobiles ..... X X X X Extracts X X X X X X X X Extracts X X X X
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