TMI Blog1998 (4) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... nt from the partnership firm of Arun Corporation (Estate Division) was not liable to tax under section 28(iv) of the Act ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in coming to the conclusion that the sum of Rs. 1,25,092 received by the assessee on retirement from the partnership firm of Arun Corporation (Estate Division) was not liable to tax under section 45 of the Act ? 3. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in coming to the conclusion that the sum of Rs. 1,25,092 was not liable to tax as being the adventure in the nature of trade ?" The relevant assessment year is 1975-76. The assessee was an owner of 202 sq. yards of land at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trade, nor could it be taxed under section 28(iv) of the Act. In the appeal filed by the Revenue before the Tribunal, it was held that in view of the decision of this court in CIT v. Alchemic Pvt. Ltd. [1981] 130 ITR 168, the provisions of section 28(iv) of the Act, were not applicable. Relying upon the decision of this court in CIT v. Mohanbhai Pamabhai [1973] 91 ITR 393, the Tribunal held that the said amount was not exigible to capital gains tax. It was also held that the amount was not taxable as business income as an adventure in the nature of trade. The appeal was, therefore, dismissed. There is no dispute about the fact that the land in question was treated as stock-in-trade of the firm. The value of the land was credited to the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which it was held that when at the time of retirement the only thing which the partner gets, was the share in the partnership firm, which he receives in terms of money, the amount so received can under no circumstances be said to be a benefit received by the assessee from business under section 28(iv) of the Act. In view of the settled legal position, we hold that the Tribunal was right in concluding that the amount in question received by the assessee on retirement from the firm was not liable to tax under section 28(iv) of the Act and question No. 1 is answered in the affirmative against the Revenue. The question whether such amount received by a partner on retirement from the firm would be liable to tax for capital gains under section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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