HC Judgment on Addition for Sham Transaction in the hand of Partners

1. Revenue is in appeal against the judgement of the Income Tax Appellate Tribunal dated 07.07.2016 raising following questions for our consideration:

“A. On the facts and in the circumstances of the case and in law, the ITAT has erred in law in ignoring the vital facts and real nature of transactions i.e. purchase and sale of land which clearly attracted capital gains and deciding the case on legal fiction created by the assessee without considering the applicability of the ratio of the decision of the Hon’ble Supreme Court in the case of Mcdowell reported in 154 ITR 148?

B. On the facts and in the circumstances of the case and in law, the ITAT has erred in law in upholding the order passed by the CIT(A), without appreciating the fact that the assessee has adopted a colorable device to evade tax, which is not allowable as held in the decision of Hon’ble Supreme Court of India in the case of Mcdowell reported in 154 ITR 148?

2. To put briefly, Revenue seeks to tax the consideration received by the respondent-assessee as partner of the two firms upon reevaluation and distribution of the partnership assets as short- term capital gain. CIT (Appeals) in a detailed judgement, reversed the order of the Assessing Officer holding that if at all the transaction was held to be sham, the additions can be made in the case of the firm and not the partners. The Commissioner (Appeals) also noted that in case of one of the partnership firms, the Assessing Officer had made such addition. In other words, now to tax the partner also would amount to double taxation. The Tribunal, while confirming the view of the CIT (Appeals), further noted that in case of other partners, the Assessing Officer had had not made the addition. CIT (Appeals) had exercised revisional powers under section 263 which order was set aside by the Tribunal.

3. Considering such facts, we do not find any question of law arising. Tax Appeal is dismissed.

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