Raghunandan Enterprise v. ACIT (2022)442 ITR 460 / 211 DTR 345 / 328 CTR 99(Guj.)(HC)

S. 281B : Provisional attachment-Power must not be exercised in an arbitrary manner-Recovery proceedings against assignee of Partner’s Share in firm-Provisional Attachment Of Property Of Firm is not valid-Interpretation of taxing statute-The golden rule of interpretation of statutes is that the statute has to be construed according to its plain, literal and grammatical meaning, unless it leads to absurdity. [Indian Partnership Act, 1932, S. 29]

In proceedings against an individual AS, to whom one of the partners of the assessee-firm had assigned part of her interest in the firm, property standing in the name of the assessee-firm was provisionally attached on the ground that AS had paid cash consideration to the partner and thereby, derived 2.5 per cent. share in the profit from the partner. On a writ petition to quash the order of provisional attachment the Court held that the case on hand indisputably was not one of a sub-partnership though in view of section 29(1) of the Partnership Act,  as an assignee may become entitled to receive the assigned share in the profits from the firm, not as a sub-partner because no sub-partnership came into existence, but as an assignee to the share of profit of the assignor-partner. The subject land not being the property of AS, was not open to provisional attachment. Even if the Department’s case that there was some interest of AS involved in the land in question, that would not make the subject land of the ownership of AS. The provisional attachment of the subject land under section 281B of the Act at the instance of the Revenue was not sustainable in law. A fine distinction was drawn by the Supreme Court in the case of  Sunil J. Kinariwala  (2003) 259 ITR 10 (SC) between a case where a partner of a firm assigns his or her share in favour of a third person and a case where a partner constitutes a sub-partnership with his or her share in the main partnership. Whereas in the former case, in view of section 29(1) of the Partnership Act, the assignee gets no right or interest in the main partnership except to receive that part of the profits of the firm referable to the assignment and to the assets in the event of dissolution of the firm, in the latter case, the sub-partnership acquires a special interest in the main partnership.  The golden rule of interpretation of statutes is that the statute has to be construed according to its plain, literal and grammatical meaning, unless it leads to absurdity. (AY.2014-15 to 2019-20)