Capital Gain Tax

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Krutesh Patel (Querist)
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08 July 2009 Hello,

I want to know whether capital gain is attracted on succession of partnership firm by a company in which such company is already a partner. Consideration is discharged by issue of shares to retiring partners. retiring partners are already shareholders in such company. Company has issued shares at price lower than interistic value of shares.

Thanks

Aditya Maheshwari

Aditya Maheshwari (Expert)
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08 July 2009 It will not be regarded as transfer if the following conditions are satisfied:

any transfer of a capital asset or intangible asset by a firm to a company as a result of succession of the firm by a company in the business carried on by the firm, or any transfer of a capital asset to a company in the course of [demutualisation or] corporatisation of a recognised stock exchange in India as a result of which an association of persons or body of individuals is succeeded by such company :]

Provided that—

(a) all the assets and liabilities of the firm [or of the association of persons or body of individuals] relating to the business immediately before the succession become the assets and liabilities of the company;

(b) all the partners of the firm immediately before the succession become the shareholders of the company in the same proportion in which their capital accounts stood in the books of the firm on the date of the succession;

(c) the partners of the firm do not receive any consideration or benefit, directly or indirectly, in any form or manner, other than by way of allotment of shares in the company; and

(d) the aggregate of the shareholding in the company of the partners of the firm is not less than fifty per cent of the total voting power in the company and their shareholding continues to be as such for a period of five years from the date of the succession;

[(e) the [demutualisation or] corporatisation of a recognised stock exchange in India is carried out in accordance with a scheme for 32[demutualisation or] corporatisation which is approved by the Securities and Exchange Board of India established under section 3 of the Securities and Exchange Board of India Act, 1992 (15 of 1992);]

Krutesh Patel

Krutesh Patel (Querist)
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10 July 2009 But sir,
The company was partner. So it can become shareholders of its own company. So I want to know whether above condition (b) is violated or not?

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