1998 (8) TMI 53

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..... the income referred to in that clause is to be included, shall be the husband or wife whose total income (excluding the income referred to in that clause) is greater ; and, for the purposes of clause (iii), the income of the minor child from the partnership shall be included in the income of that parent whose total income (excluding the income referred to in that clause) is greater; and where any such income is once included in the total income of either spouse or parent, any such income arising in any succeeding year shall not be included in the total income of the other spouse or parent unless the Income-tax Officer is satisfied, after giving that spouse or parent an opportunity of being heard, that it is necessary so to do". Section 64 .....

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..... minology used in this Explanation is very emphatic. There is no room for any ambiguity in the provision. The mandate of the Legislature is that once included in the income of either spouse or parents, it "shall" continue to be included in the assessment of that spouse or parent only. That situation can be altered only when the Income-tax Officer, after giving the affected parties appropriate opportunity holds that it is "necessary" to do so. The dictionary meaning of the word "necessary" is something indispensable to some purpose. The word is defined in Webster's Dictionary as unavoidable, inevitable, indispensable, mandatory, inherent in the situation, and undeniable, The various shades of the meaning of the word "necessary" would ind .....

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..... f the Explanation. The Income-tax Officer by choosing to label his action as being "necessary" cannot defeat the legislative intent and arrogate to himself powers which have not been conferred on him by the legislative provision. Before the change can be regarded as "necessary" there should be some compelling circumstance apart from the benefit to the Revenue arising from the inclusion in the income of the assessee spouse or parent whose income is higher in the assessment year. The question referred to us at the instance of the Revenue, which arises out of the assessment of one of the parents of the minor for the assessment years 1977-78 and 1978-79 as to whether the Tribunal was correct in law in holding that once the share income of th .....

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