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Issues Involved:
1. Applicability of Section 64(1)(i) and (ii) of the Income Tax Act, 1961. 2. Inclusion of share income of wife and minor children in the individual assessment of the karta of a Hindu Undivided Family (HUF). Summary: Issue 1: Applicability of Section 64(1)(i) and (ii) of the Income Tax Act, 1961 The questions referred in these I.T.R.Cs. relate to the scope of s. 64(1)(i) and (ii) of the I.T. Act, 1961 (called shortly "the Act"). The Commissioner of Income-tax, in exercise of his powers u/s 263, revised the assessments in all the above cases and directed that the share income of the wife and minor sons of the assessee should be clubbed with the individual income of the assessee. Issue 2: Inclusion of Share Income of Wife and Minor Children in Individual Assessment of Karta of HUFThe question for consideration is, when the karta of a HUF is a partner in a firm along with his wife, whether the wife's share income from the firm could be assessed in the hands of her husband in his individual capacity. Another question for consideration is, when the karta of a HUF is a partner in a firm and when the karta's minor children have been admitted to the benefits of that partnership, whether the minors' share income from the firm could be brought to tax in the hands of the father in his individual status. According to Mr. Srinivasan, learned counsel for the Revenue, this section requires that-(i) there should be a partnership firm carrying on business; (ii) the spouse and/or minor child of an individual should be a partner or admitted to the benefits of the partnership firm; and (iii) such individual should also be a partner of that firm. If these factors co-exist, then s. 64 operates and the share income of the spouse and/or the minors from such firm should be included in the total income of the individual for the purpose of assessment. Mr. Sarangan and Mr. Prasad characterised the submission of Mr. Srinivasan as purely a traditional literal-minded approach without due regard to the intention of the Legislature or the purpose for which s. 64(1) was enacted. The learned counsel urged that the words "any individual" and "such individual" occurring in s. 64(1) do not cover an individual like the karta who becomes a partner in a firm in his representative capacity. The crux of the question is whether the words "any individual" and "such individual" occurring in s. 64(1) include the karta of a HUF. At the heart of the question is the difference between an individual becoming a partner in his personal capacity and an individual becoming a partner in his representative capacity. The karta of a HUF unlike other individuals has thus a two-fold capacity. Qua the partnership, he functions in his personal capacity, because the rights of partnership are governed by the Partnership Act, 1932. The relation of partners arises from contract and not from status. The partnership is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. The HUF may be a person or unit of assessment under the Act, but it cannot become a partner in a firm. Qua, the third parties, the karta who becomes a partner retains his representative capacity. He is liable to account for the assets of the family or income received by him for and on behalf of the family. Therefore, the share income accrued to him in the partnership firm can be brought to tax only in the assessment of the HUF and not in his individual status. If s. 64(1) ex hypothesis excludes income assessable in the hands of the HUF, there is every reason not to club the share income of the wife and minor child of the karta-partner with his personal income. That could be achieved by adopting the alternate construction, that is, by reading down the scope of the word "individual" in s. 64(1)(i) and (ii) and confining the same to the one whose share income is liable to be taxed in his hands. It is a well known principle that, if two constructions are equally possible and reasonable, the construction more favourable to the subject must be preferred. Conclusion:Our answer to the question referred in I.T.R.C. No. 89/76 is in the negative and in favour of the assessee. Our answer to the question referred in I.T.R.C. No. 90/76 is in the negative and in favour of the assessee. Our answer to the question referred in I.T.R.C. No. 85/78 is in the affirmative and against the Revenue.
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