October 2019

Capital gains Transfer Sections 45(4) and 47 of ITA, 1961 Conversion of firm to private limited company Transaction not transfer giving rise to capital gains

K.B.Bhujle
Advocate

4.       Principal CIT vs. Ram Krishnan Kulwant Rai Holdings P. Ltd.; [2019] 416 ITR 123 (Mad.) Date of order: 16th July, 2019 A.Y.: 2009-10

 

Capital gains Transfer Sections 45(4) and 47 of ITA, 1961 Conversion of firm to private limited company Transaction not transfer giving rise to capital gains

 

The assessee was a private limited company. Originally, the assessee was a partnership firm and it was converted into a private limited company. The firm revalued its assets and in the revaluation, the value of the assets was increased to Rs. 117,24,04,974, but the book value of the assets on the date of revaluation was Rs. 52,16,526. The AO held that the total value of the capital account of all the four partners after being revalued stood at Rs. 117,32,87,069, that the shares were allotted to the partners of the firm for a total amount of Rs. 10 lakhs and that the balance of Rs. 117,22,87,070 was given as credit of loan to the partners of the erstwhile firm in the same proportion as their share capital of the firm, that this was a deviation stipulated u/s 47(xiii) of the Income-tax Act, 1961 for exemption from the capital gains and made an addition of Rs. 117,22,87,070 towards short-term capital gains and brought the amount to tax.

 

The Tribunal held that the capital gains tax could not be levied in the hands of the assessee-company, which succeeded to the assets and the liabilities of the firm and allowed the appeal of the assessee.

 

On appeal by the Revenue, the Madras High Court upheld the decision of the Tribunal and held as under:

 

(i) 

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