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4. The rival submissions made by the Revenue as well as the assessee was considered in the light of the materials placed before this court for consideration. The fact remains that the cinema theatre in question, in this reference, was originally owned by one Thiru K. S. Ramalingam Pillai of Melaiyur, Kaveripattinam, Sirkali Taluk, and he was running the above-said theatre under the name Gowri Theatre. Admittedly, the abovesaid theatre was purchased by a firm consisting of Thiru K. Raffiuddin (assessee), his wife, his father-in-law, Thiru S. A. Kader Sahib, Tmt. Jaffar Nachier, wife of Yacub of Koothanallur, and one Thiru Abdul Rahim, son of Mohd. Kassim of Kollapuram. The abovesaid Tmt. Jaffar Nachier and Thiru Abdul Rahim left the abovesaid partnership firm, while Thiru S. A. Kadar Sahib died subsequently. On the death of Thiru S. A. Kader Sahib, his share in the firm came to the wife and mother-in-law of the assessee.

5. It is also not in dispute that the firm referred to above had purchased Gowri Theatre on October 7, 1967, along with the furniture and fittings, etc., from Thiru K. S. Ramalingam Pillai, and, at that time, the assessee has paid Rs. 2,00,000 towards goodwill of the abovesaid theatre. After the purchase of the abovesaid theatre, the assessee was running the abovesaid theatre changing the name to Kohinoor Theatre. Admittedly, the assessee had sold the theatre running under the name and style of Kohinoor Theatre to one Thiru S. Gurunathan Chettiar of Mayuram on July 17, 1974, under two separate documents for transfer. A registered document was executed for sale of land and cinema theatre on July 17, 1974, while a sale note was executed with regard to the movable properties, like cinema equipment, projector, machinery, furniture and fittings, generator, etc.

9. It is relevant to point out that the entire business of the cinema theatre, along with the land and building, cinema equipment, the projector, the machinery, furniture and fittings, generator, etc., were transferred as contemplated under Section 2(47) of the Act. It is also relevant to point out that the goodwill of the theatre was purchased by the assessee from Thiru K. S. Ramalingam Pillai on October 7, 1967, for Rs. 2,00,000, and the goodwill was retained by him till the theatre was sold to Thiru S. Gurunathan Chettiar on July 17, 1974. It is, therefore, evident that the goodwill of the abovesaid theatre had been in existence long since in the hands of the assessee up to the transfer of the abovesaid theatre on July 17, 1974, to Thiru S. Gurunathan Chettiar.

A partner has a marketable interest in all the assets of the firm including the goodwill even during the subsistence of the partnership. This interest is "property" within the meaning of Section 2(15) of the Estate Duty Act, 1953."

14. It is evident from the principle laid down by the apex court that even if there is any clause in the agreement of partnership deed, with regard to non-transfer of right in the goodwill of a business, it will automatically get transferred in the event of the death of a partner. The abovesaid decision lends support to the contention of learned counsel for the assessee that the goodwill is inseparable from the business and on transfer of the abovesaid business, the goodwill also accompany it to the purchaser. In view of the abovesaid decision of the apex court, the contention raised on behalf of the Revenue that the goodwill was not sold, but was retained by the asses-see at the time of sale of the theatre to Thiru S. Gurunathan Chettiar on July 17, 1974, and, therefore, it cannot be said that there was loss to an extent of Rs. 2,00,000 in the goodwill, for which, the assessee had paid Rs. 2,00,000 at the time of the purchase of the said theatre on October 7, 1967, from Thiru K. S. Ramalingam Pillai, cannot be accepted.