1983 (9) TMI 21 - HC - Income Tax

Summary

Issues:
1. Whether the loss apportioned to the wife in the firm should be excluded in determining the appellant's total income or total loss.
2. Whether the Additional Commissioner of Income-tax rightly assumed jurisdiction under section 263 and passed the order.

Analysis:

Issue 1:
The case involved the assessment of an individual who was a partner in a firm where his wife was also a partner. The Income Tax Officer (ITO) included the wife's share of loss in the husband's assessment under section 64 of the Income Tax Act. The Additional Commissioner, under section 263, revised the orders to exclude the wife's loss. The Income-tax Appellate Tribunal upheld the Additional Commissioner's decision, stating that reducing the loss could benefit the Revenue in future years. The Tribunal also noted the Gujarat High Court's ruling and preferred it over other authorities cited. However, subsequent decisions by other High Courts, such as the Mysore and Kerala High Courts, disagreed with the Gujarat High Court's narrow interpretation. The Mysore High Court emphasized the binding nature of circulars and reversed the Tribunal's decision. The Kerala High Court confirmed the applicability of circular instructions even after their withdrawal. The Bombay High Court, in its analysis, found the Gujarat High Court's view narrow and incorrect, especially in light of subsequent decisions by various High Courts.

Issue 2:
The Tribunal's decision was based on the belief that reducing the loss in the current assessment years could benefit the Revenue in future years, justifying the Additional Commissioner's jurisdiction under section 263. The High Court agreed with the Tribunal's reasoning, stating that the Tribunal had correctly exercised its jurisdiction. The High Court also considered the impact of subsequent amendments, specifically Explanation 2 added to section 64 by the Finance Act, 1979. The Explanation clarified that income includes loss for the purpose of aggregation or clubbing. The High Court noted that other High Courts, such as the Mysore, Kerala, and Madhya Pradesh High Courts, had reached similar conclusions even before the insertion of Explanation 2. Therefore, the High Court answered the questions in favor of the assessee regarding the inclusion of the wife's loss in determining the total income or total loss and in favor of the Revenue regarding the Additional Commissioner's jurisdiction under section 263. The High Court directed the Commissioner to pay the costs of the reference to the assessee.