SABYASACHI MUKHARJI, J.

( 1 ) IN this reference under Section 256 (1) of the I. T. Act, 1961, we are concerned with the assessment year 1970-71, and the following question has been referred to this court: "whether, on the facts and in the circumstances of the case, and on a correct interpretation of Section 45 and Section 47 (ii) of the Income-tax Act, 1961, the Tribunal was right in holding that no element of transfer of a capital asset was involved in the receipt of money by the assessee from the firm as a retiring partner and that no-capital gains tax was chargeable on the profit, if any, arising to the retiring partner from the receipt of such money ? "

( 2 ) IN order to appreciate the question it is necessary to refer to certain facts. The assessee and two of his brothers along with others were partners of a firm styled as M/s. G. S. Atwal and Co. The assessee had 13% share, one of his brothers had 13% share and another brother of the assessee had 9% share in the said firm. It was under the deed of retirement and reconstitution dated 3rd of April, 1969, that the assessee and his two brothers retired from the firm with effect from 1st of October, 1968, and those three outgoing

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