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TMI Blog1981 (11) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... d be clubbed with the income of his wife in her assessment, on account of section 64(1)(ii) of the Income-tax Act, 1961 ('the Act'). The amounts of remuneration and allowance forming the subject-matter of dispute are commission receipt of Rs. 13,500 for each of the years and conveyance allowance at Rs. 6,000, reduced by the expenditure claimed against the same at Rs. 5,000. 2. Section 64(1)(ii) provides for inclusion in the total income of any individual of such income as arises directly or indirectly to the spouse of such individual by way of salary commission, fees, or in any other form of remuneration whether in cash or in kind from a concern in which such individual has substantial interest. The proviso to that clause, however, saves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttedly received by him and which belongs to him. It is of course conceded by the learned departmental representative that if the ITO while assessing the assessee's wife has already included in her assessment the income in question, then the same income cannot be taxed again in the hands of the assessee as it is a fundamental principle that there can be no double taxation on identical income. But he submits that it is for the assessee to show that the income has already been included or taxed in the hands of his wife and then alone he is entitled to dispute the inclusion in his own assessment. 4. On a consideration of the facts and the submissions of the parties, we find force in the assessee's claim. The learned departmental representativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese provisions, therefore, in the present case of the assessee even though the disputed income arises to the assessee it has to be included and assessed in the assessment of his wife, as it is the only way of taxing the income under the provisions of the Act. The assessee has, therefore, every right to question the inclusion of the amounts in his total income notwithstanding the fact that the income in fact arises to him. The contention of the departmental representative that the assessee cannot dispute the addition and it is for the ITO while making the assessment on his wife, should invoke the provision, has no merit. We, therefore, accept the assessee's contention and direct deletion of the disputed addition. The appeals are allowed. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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