9911796707
TMI Blog1997 (3) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... t in T. C. No. 147 of 1974 because the questions referred in that case alone were answered against the Revenue. In the other three tax cases the questions referred were answered in favour of the Revenue and certificate of fitness was granted to the assessee. Under a misapprehension appeals have also been filed by the Revenue against the judgment in Tax Cases Nos. 146, 171 and 240 of 1974. The said appeals are dismissed as not maintainable. We would confine ourselves to the appeal against the judgment in Tax Case No. 147 of 1974 wherein the following two questions were referred to the High Court for its opinion by the Income-tax Appellate Tribunal (hereinafter referred to as "the Tribunal") : "1. Whether, on the facts and in the circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner. In the reconstituted firm, the share of Magnesite Corporation of India Ltd., continued to be one-third while that of Dalmia Cement (Bharat) Ltd. was two-thirds. Under a scheme framed by the Madras High Court by order dated November 16, 1962, in Company Petition No. 46 of 1962, the assets of Magnesite Corporation of India Ltd. came to be vested in Dalmia Cement (Bharat) Ltd., and Magnesite Corporation of India Ltd., became a wholly owned subsidiary of Dalmia Cement (Bharat) Ltd., with effect from January 1, 1963. As a result the shareholding of the partners in the assessee-firm changed and the share of Magnesite Corporation of India Ltd. was reduced to one-tenth while that of Dalmia Cement (Bharat) Ltd. was increased to nine-tenths. A s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal to the High Court for its opinion. While dealing with the first question the High Court has held that in order that clause (i) of sub-section (5) of section 155 of the Act may be attracted there must be a sale or a transfer of the plant installed by the assessee and that such transfer must be by the assessee and that in the present case it could not be said that there has been a transfer by the assessee of the plant or machinery and that any change in the ownership of the assets had been effectuated by virtue of an order passed by the High Court in the company petition whereby the rights of one of his partners in the assets were vested in the other partner. According to the High Court this could, by no stretch of imagination, be treate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a partnership could not continue with one partner the assessee-firm should be treated to have stood dissolved on January 1, 1964. In the facts and circumstances of this case we do not find any infirmity in the impugned judgment of the High Court whereby the two questions referred to it for opinion have been answered against the Revenue on the basis that in view of the special provision for rectification of an assessment order contained in section 155(5) the general power of rectification contained in section 154 was not applicable and that the power under section 155(5) could not be invoked in the facts of the present case because there was no transfer of plant by the assessee-firm. The appeal, therefore, fails and is accordingly dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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