1. This reference under s. 256(1) of the I.T. Act of 1961 at the instance of the Revenue raises an interesting question of law as to the scope and ambit of s. 45 if the Act relating to capital gains tax.
2. The assessee is the karta of an HUF. He was previously a partner in two firms : (1) M/s. Chegu Krishnamurthy, Guntur and (2) M/s. Southern Tobacco Packers, Guntur. The assessee retired from the above two firms with effect from January 1, 1971. On the date of retirement, his capital accounts were credited with a sum of Rs. 46,500 more than amount due to him towards his capital and profits. The firms from which the assessee retired were carrying on business with all remaining partners. The ITO observed that the amount of Rs. 46,500 received by the assessee. Accordingly the ITO assessed the capital gains in the hands of the assessee. The main contention that the case was governed by s. 47(2) of the Act and the transaction cannot be regarded as a transfer so as to attract the liability under s. 45 of the Act was rejected by the ITO on the ground that it was not a case of a dissolution of the firms. The matter was carried in appeal. The assessee reiterated the same contention, namely, that the sum of Rs. 46,500 could not be treated as capital gains in view of s. 47(2) of the I.T. Act, 1961. The AAC negatived the contention of the assessee and upheld the order of the ITO.
3. The assessee went up in further appellate Tribunal there was a shift in the stand and the assessee contended that the was no transfer of any capital asset within the meaning of clause (47) of s. 2. It was urged that a partner has no right to the partnership assets as such and his right was only to receive a share in the profits and assets when he retired from the firms. In support of his contention, the assessee relied upon a decision of the Gujarat High Court in CIT v. Mohanbhai Pamabhai  91 ITR 393. The Tribunal accepted the contention based on the principle enunciated in the Gujarat case and allowed the appeal.
4. On an application by the Revenue, the following question was referred to us for our decision :
'Whether, on the facts and in the circumstances of the case, the excess amount of Rs. 46,500 received by the assessee on retirement from the two partnership firms is assessable to capital gains ?'
5. To answer this question, it is necessary to refer to a few relevant sections of the I.T. Act, hereinafter called 'the Act'.
6. Section 45, the charging section, is as follows :
'45. (1) Any profits or gains arising from the transfer of a capital asset effected in the previous year shall, save as otherwise provided in section 53, 54, 54B, 54D and 54E be chargeable to income-tax under the head 'Capital gains', and shall be demanded to be the income of the previous year in which the transfer took place'.
7. Section 2, clause (14), defines the capital asset as under :
'2. (14) 'Capital asset' means property of any kind held by an assessee, whether or not connected with his business or profession, but does not include-...'
8. Section 2, clause (47), defines transfer as follows :
'2. (47) 'Transfer', in relation to a capital asset, includes the sale, exchange or relinquishment of the asset of the asset or the extinguishment of any rights therein or the compulsory acquisition thereof under any law.'
9. Section 47 exempts certain transfer from the provisions of s. 45. Section 47 is as follows :
'47. (ii) Any distribution of capital assets on the on the dissolution of a firm, body of individuals or other association of persons.'
10. It is admitted that the instant case is not governed by s. 47(ii) of the Act there was no dissolution of the firm. The ITO as well as the AAC on facts found that the firm was continuing with the the remaining members. In fact the assessee gave up the plea based on s. 47(ii) even before the Appellate Tribunal.
11. Mr. Suryanarayana Murthy, the learned counsel for the Revenue, mainly contended that on the retirement of a partner from a firm, a transfer, within the extended meaning given in clause (47) of s. 2 of the Act is involved. There is relinquishment of the interest of the partner in the partnership assets and an extinguishment of his rights in the partnership assist. He submits that a distinction has to be drawn between a case of the retirement of a member of the dissolution of the firm. He says that in the case of the former the retiring partner relinquishes his right in the partnership assets resulting in an extinguishment of his rights in the existing partnership, whereas in the case of a dissolution of a firm the position is different as the partnership itself comes to an end.
12. On the other hand, it is contend by Mr. Anjaneyulu, the learned counsel for the assessee, that in law there is no distinction between the two, as a partner has no right to the partnership assets so as to involve a transfer on retirement or dissolution. There is neither relinquishment of any assets nor the extinguishment of any right to the asset. The retiring partner walks out with the amounts due to him towards his share of profits and assets.
13. To decide the controversy, it is necessary to determine the rights of a partner under the provisions of the partnership Act.
14. In Narayanappa v. Baskara Krishnappa, : 3SCR400 , a question arose whether a document recording the terms and conditions of dissolution which included a stipulation which included a stipulation that one of the partners had given up his share in the machines, etc., and in the business and made over the same to the other partners was compulsorily under s. 17(1)(c) of the Registration Act. In that connection, the Supreme Court analysed the relevant provisions of the Partnership Act and observed as follows (p. 1303) :
'From a perusal of these provisions it would be abundantly clear that whatever may be character of the property which is brought in by the partners when the partnership is formed or which may be acquired in the course of the business of the partnership it becomes the property of the firms and what a partners is entitled to is his share of profits, if any accruing to the partnership from the realisation of this property, and upon dissolution of the partnership to a share in the money representing the value of property. No doubt, since a firm has no legal existence, the partnership property will rest in all the partners and in that sense every partner has an interest in the property of the partnership. During the subsistence the partnership however, no partner can deal with any portion of the property as his own. Nor can he assign his interest in a specific item of the partnership property of any one. His right is to obtain such profits, if any, as fall to his share from time to time and upon the dissolution of the firm to a share in the assets of the firm which remain after satisfying the liabilities set out in clause (a) and sub-clauses (i), (ii), and (iii) of clause (b) of section 48.'
15. The Supreme Court quoted with approval the following statement of law of from Lindley on Partnership, 12th edn., : (1966)IILLJ343AP :
'What is meant by the share of a partner is his proportion of the partnership assets after they have been all realised and converted into money, and all the partnership debts and liabilities have been paid and discharged. This it is, and this only, which on the death of a partner passes to his representatives, or to legatee of his share... and which on his bankruptcy passes to his trustee.'
16. The Supreme Court summarized the position in the later portion of the judgment as follows (p. 1304) :
'... his right during the subsistence of the partnership is to get his share of profits from time to time as may be agreed upon among the partners and after the dissolution of the partnership or with his retirement from partnership of the value of his share in net partnership assets as on the date of dissolution or retirement after a deduction of liabilities and prior charges.'
17. The Supreme Court held that though the partnership assets included immovable properties, there was no relinquishment of interest in any of the immovable properties by the outgoing partner and what he gets is merely by way of adjustment of the rights of the partners on dissolution by giving up his share in the net partnership assets after deduction of liabilities and poor charges and it was, therefore, not compulsorily registrable under s. 17(1)(c) of the Registration Act.
18. In CIT v. Mohanbhai Pamabhai  91 ITR 393 the Gujarat High Court held that the observations of the Supreme Court in Narayanappa v. Bhaskar Krishnappa, : 3SCR400 , are equally applicable where the partner retires from the partnership. Bhagwati C. J., speaking for the court, succinctly summarized the rights of a partner as follows (p. 402) : When, therefore, a partner retires from a partnership and the amount of his share in the net partnership assets after deduction of liabilities and prior charges is determined on taking accounts on the footing of notional sale of the partnership assets and given to him, what he revives is his share in the partnership and not any consideration for transfer of his interest in the partnership to the continuing partners, His share the partnership is worked out by taking accounts in the manner prescribed by the relevant provisions of the partnership law and it is this, and his only, namely, his share in the partnership which he revives in terms money. There in this transaction no element of transfer of interest in the partnership assets by the retiring partner to the continuing partners.'
19. Mr. Suryanarayanamurthy, the learned counsel for the Revenue, submitted that the decision in Narayanappa v. Bhaskara Krishnappa, : 3SCR400 , related to a case arising under s. 17(1)(c) of the Registration The language employed in s. 17(1)(c) is analogous to s. 2, clause (47). Section 17(1)(c) requires compulsory registration of a document where it acknowledges payment of consideration not only on account of creation, declaration, assignment or limitation but also on account of extinction of any right, title or interest in immovable property, and the document in Narayanappa's case could have, therefore, clearly required compulsory registration if there was any relinquishment or extinguishment of interest of one of the partners. We fall to see how the observations of the Supreme Court do not apply in the case of a retirement of a partner. The question is whether there is any relinquishment or extinguishment of right in the partnership assets. That question depends upon the rights of a partner in the partnership assets and Narayanappa's case squarely decided the same.
20. In CIT v. Dilip Engineering Works : 129ITR688(Guj) , it was held that where a retiring partner receives in lieu of his share in the partnership assets any cash or any other asset, no transfer of the asset was involved. Though this case arose in the context of the provisions of s. 41(2), it is relevant to this extent, namely, that no transfer is involved when a retiring partner receives at the time of retirement his share in the partnership assets either in cash or any other asset.
21. In Addl. CIT v. Smt. Mahinderpal Bhasin : 117ITR26(All) , the Allahabad High Court followed the decision of the Gujarat High Court in CIT v. Mohanbhai Pamabhai  91 ITR 393 and held that when a partner retires, what he revives is really his share in the partnership assets. It is not a consideration for a transfer of his interest in the partnership to the continuing partners. In the case of a retirement of a partner just as in the case of a dissolution of partnership, there is no element of transfer. It is only an adjustment of the rights of the partners and not a relinquishment or extinguishment of the interest of a retiring partner.
22. The same view was followed in CIT v. Madan Lal Bhargava : 122ITR545(All) , wherein it was observed that all that all the assessee received on his retirement from the firm in respect of his share in the good will was its value to which he was all along entitled and that the case need not fall within the purview of s. 2, clause (47) and consequently s. 45 had no application.
23. Mr. Suryanarayana Murthy drew our attention to two decisions of the Bombay High Court in CIT v. Tribhuvandas G. Patel : 115ITR95(Bom) and CIT v. H. R. Aslot : 115ITR255(Bom) taking a contrary view. In the first case a lump sum amount was paid to the retiring partner and the question arose whether it amounted to a transfer under s. 2, clause (47). The Bombay High Court drew a distinction between a case where a retiring partner gets his share of partnership after deducting the liabilities and his share of partnership on taking accounts on the footing of a notional sale of partnership assets and where a lump sum amount is paid in consideration of the partner retiring without any accounting being done. It was held that in a case where the partner is paid a particular amount of money as his share in the partnership assets after accounting, it would not amount to a transfer, but where a lump sum amount is paid in consideration for his retirement in the partnership and assignment of his interest to the other partners it would be a transfer as defined in s. 2, clause (47). Referring to the terms of the retirement deed, it was held that there was a transfer as defined by s. 2, clause (47) and hence liable to tax under s. 45 of the Act. The other decision of the Bombay High Court also turned on the Act. Partition of the retirement deed following the view taken in CIT v. Tribhuvandas G. Patel : 115ITR95(Bom) . Thus, in these two cases the decision turned upon the facts of the said cases. It is no doubt true as submitted by the learned counsel for the Revenue that the Bombay Court did not accept the principle in CIT v. Mohanbhai Pamabhai  91 ITR 393 that there is no distinction between a case of a retirement of the partner and dissolution of the partnership firm and that there can never be a transfer of a capital asset in the case of a retirement of a partner as there is no relinquishment of a capital asset or a retirement of a partner as there is no relinquishment of a capital asset or extinguishment of rights therein. With great respect we are unable to agree with the view of the Bombay High Court. The rights of a partner are governed by the provisions of the Partnership Act. Otherwise by a mere description the nature of the transaction can be altered. Further, the Gujarat High Court in CIT v. Mohanbhai Pamabhai  91 ITR 393 followed the decision of the Supreme Court in Narayanappa v. Bhaskara Krishnappa, : 3SCR400 , which laid down the proposition of law unequivocally.
24. Mr. Suryanarayana Murthy lastly contended that if there was no distinction between the retirement of a member and the dissolution of a firm s. 47(ii) was unnecessary. But may be mentioned that s. 47(ii) deals, not only the case of the dissolution of a firm, but also with cases of transfer by a body of individuals and other association of persons. That apart, s. 2, clause (47)(ii) excludes the application of s. 45 in case of dissolution of firms on the ground that no transfer is involved, it cannot be implied that f transfer is involved in the case of retirement. It cannot be implied that a transfer is involved in the case of retirement. The converse or the opposite does not follow.
25. For the reasons given above, we agree with the view expressed by the Gujarat High Court in CIT v. Mohanbhai Pamabhai  91 ITR 393 which is based on the observation of the Supreme Court in Narayanappa v. Bhaskara Krishnappa, : 3SCR400 . The Tribunal was perfectly right in upholding the contention of the assessee that the sum of Rs. 46,500 received by him on his retirement is not assessable to capital gains.
26. We answer the reference in the negative and in favour of the assessee with costs. Advocates fee Rs. 250.