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TMI Blog1973 (2) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned, viz., 1957-58 to 1960-61, the income from those house properties was included in the total income of the assessee under section 16(3)(a)(iii) of the Indian Income-tax Act, 1922 (to be hereinafter referred to as " the Act "). The assessee challenged the validity of that inclusion firstly, on the ground that section 16(3)(a)(iii) of the Act is ultra vires article 14 of the Constitution and, secondly, on the ground that the income in question cannot be considered as his income for the purpose of the said section. These objections were overruled by the authorities under the Act. Thereafter, at the instance of the assessee, the following three questions were referred to the High Court of Patna under section 66(1) of the Act : " (1) W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10% of his total income under the first proviso to section 9(2) of the Act. Hence, the material question to be decided is whether the income from the properties in Calcutta is liable to be included in the income of the assessee. The assessee is assessed as an individual. As mentioned earlier, he is the holder of an impartible estate. The incidents of impartible estate have been well-settled by the decisions of courts in this country as well as by the decisions of the judicial Committee. The holder of an impartible estate has uncontrolled power of enjoyment and disposal over the impartible estate as well as over the income arising therefrom ; but, yet the estate belongs to the Hindu joint family of which the holder is a member. Subject to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing in fact and in law joint in respect of the estate, is also the senior member in the senior line. " On the basis of the above reasoning their Lordships held " for the purpose of section 9 of the Act " the income in question is not the individual income of the holder of the estate. After that decision was rendered section 9 of the Act was amended by incorporating section 9(4) which reads : " For the purpose of this section--- (a) the holder of an impartible estate shall be deemed to be the individual owner of all the properties comprised in the estate...... " Hence it is clear that after section 9 was amended the income of house property owned by a holder of an impartible estate has to be considered as his individual income. From ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of section 9 ; it was further urged that a legal fiction cannot be extended beyond the purpose for which it was created. Counsel for the assessee urged that the fiction incorporated in section 9(4)(a) can be taken into consideration only for the purpose of section 9 and not for the purpose of section 16(3). This contention appears to us to be fallacious. Section 6 of the Act sets out the various heads of income, profits and gains chargeable to income-tax. They are : (i) salaries ; (ii) interest on securities ; (iii) income from property ; (iv) profits and gains of business, profession or vocation ; (v) income from other sources and (vi) capital gains. Section 3 read with section 4 brings to tax the total income, profits a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is created ; but that does not mean that the court should not give effect to that fiction. Section 27(ii) of the Income-tax Act, 1961, which has taken the place of section 9(4) of the Act does not begin by saying " for the purpose of this section. " On the other hand, it says that " the holder of an impartible estate shall be deemed to be the individual owner of all the properties comprised in the estate ". It was contended on behalf of the assessee that this is a change in the law and on that basis we were asked to accept the assessee's construction of section 9(4)(a). We are unable to accept this contention. We do not think that there is any change in the law. Section 27(ii) of the Income-tax Act, 1961, makes explicit what was implici ..... X X X X Extracts X X X X X X X X Extracts X X X X
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