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2018 (12) TMI 466

6.6.1978 - relinquishment of rights of partners - Held that:- Partners have stated in the sale deed that they have relinquished their right does not pre-suppose that any right existed in them as on that date. The partners could relinquish only which they possess. The sale deed was executed on 14.2.2001. The partners retired on 6.6.1978. Therefore, they had no right at all which they could relinquish. Therefore, in the absence of possessing any legal right, the question of relinquishment does not arise for consideration. Therefore, such a contention cannot be accepted. - The finding recorded by the Tribunal that the assessee was the owner of the land and building, is just and proper. It is also justified in holding that the provisions of .....

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ADVOCATE FOR SRI G.K.V. MURTHY, ADVOCATE) RESPONDENT (BY SRI K.V. ARAVIND, ADVOCATE) J U D G M E N T RAVI MALIMATH, J. The assessee is a partnership firm in the name and style of M/S.Srinivasa Enterprises . Sri.N.A.Venugopal and N.A. Ravigopal were the owners of immovable properties situated at Doddaballapur. They had purchased the same under a separate Sale Deed in the year 1973. They constituted a partnership in the name of M/S.Srinivasa Enterprises along with 12 others in terms of the Partnership Deed dated 26.11.1976. A Theatre by name Gopal Theatre was constructed in the premises in question. Sri.N.A.Venugopal and N.A.Ravigopal retired from the partnership with effect from 6.6.1978. The partnership firm continued. It was reconstituted .....

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gains in respect of the building including fixtures and furniture. Thereafter, the long term capital gains at ₹ 23,25,600/- and short term capital gains at ₹ 10,10,537/- were computed. Aggrieved by the same, the partners filed an appeal before the Commissioner of Income Tax (Appeals), which was dismissed. The appeal filed by the partners before the Income Tax Appellate Tribunal was also rejected. Hence, this appeal. 3. By the order dated 17.3.2010, the appeal was admitted to consider the following substantial questions of law: i) Whether, on the facts and circumstances of the case, the Tribunal is right in holding that the firm, M/s.Srinivasa Enterprises, was the owner of the capital asset viz. land and building comprised in Go .....

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at amount cannot be taxed in the hands of the assessee since the sale has been effected by the erstwhile partners. Therefore, it cannot be considered that the property stood in the name of the partnership firm. That the computation of the capital gains is erroneous. 5. The same is disputed by the counsel for the revenue. 6. Heard learned counsels. 7. The contention of the assessee is that the erstwhile partners namely Venugopal and Ravigopal were the only owners of the land and therefore the income that is assessed in the name of the firm, requires to be deleted. However, the material on record would indicate that both of them had furnished a joint letter dated 28.11.2006 wherein they stated that they had contributed their share as capital .....

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heir rights by executing the deed. It is therefore contended that the letter runs contrary to the deed of sale dated 14.2.2001. 10. In terms of the letter written by the partners, they were no more the owners of the property in question from the date of retirement namely 6.6.1978. Therefore, merely because they have stated in the sale deed that they have relinquished their right does not pre-suppose that any right existed in them as on that date. The partners could relinquish only which they possess. The sale deed was executed on 14.2.2001. The partners retired on 6.6.1978. Therefore, they had no right at all which they could relinquish. Therefore, in the absence of possessing any legal right, the question of relinquishment does not arise f .....

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lue of the capital asset has been determined based on the rules as specified by the Sub-Registrar. Even when repeated requests were made, there was no valuation furnished by the assessee. Therefore, the Assessing Officer had no other option but to obtain the fair market value from the jurisdictional Sub-Registrar who was authorised to furnish the same. 14. So far as the sale is concerned, whether the entire consideration were received in the hands of the assessee or not becomes a secondary question. It is only an adjustment by the assessee with the other persons. The same can be ascertained from the recitals in the sale deed, which would indicate that in order to settle certain disputes, the shares have been given to the said persons. There .....

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