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TMI Blog1985 (3) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... 72-73 was not valid ? 2. Whether, on the facts and in the circumstances of the case, the share income of the minors from the partnership firm in which the Hindu undivided family comprised of the assessee and his wife has a share as beneficial owner cannot be included in the income of the assessee under section 64 of the Income-tax Act, 1961 ? " However, after going through the facts and circumstances of the case, we do not think that there is any referable question arising from the order of the Tribunal. The assessee in this case is a partner in a registered firm of Messrs. Muthuswamy Chettiar and Sons, Madurai. His minor sons, R. Gunasekar, R. Ravisekar and R. Rajasekar, have been admitted to the benefits of partnership in the said f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessments by invoking section 147(a) as it only amounted to a change of opinion as all the facts were fully disclosed before him at the time of the original assessment and that even on merits, section 64 will not apply to a case where the father had been assessed in the status of a Hindu undivided family. For this purpose, the Appellate Assistant Commissioner relied on the decision of the Andhra Pradesh High Court in CIT v. Sanka Sankaraiah [1978] 113 ITR 313. Thus, the assessee succeeded before the Appellate Assistant Commissioner in challenging the reassessment made by the Income-tax Officer for all the three years. The Revenue took the matter in appeal to the Income-tax Appellate Tribunal and the Tribunal held that since all the mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision of the Delhi High Court in Sushila Devi Jain v. CIT [1982] 138 ITR 551, it can be taken as a non-disclosure of relevant material by the assessee which will attract section 147(a). But, in this case, the Appellate Assistant Commissioner against whose orders the Revenue went in appeal before the Tribunal specifically proceeds on the basis that all the facts were fully disclosed before the assessing authority at the time of the assessment and that what the assessing authority proposed to do was merely changing his opinion regarding the applicability of section 64. When the Revenue filed an appeal before the Tribunal, it should have specifically challenged the finding given by the Appellate Assistant Commissioner and contended before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant assessment years, the minors had their share income. It cannot be assumed that while the assessing authority assessed the share income of the assessee in his status of a Hindu undivided family, he did not see the deed of partnership which would be indicative of the fact that the minor children of the assessee had been admitted to the benefits of partnership and that they would, therefore, have had their share income during the relevant years. Therefore, if the assessing authority had perused the partnership deed at the time of the assessment of the assessee, he would have come to know that the assessee's minor sons were admitted to the benefits of partnership in the same firm and of the possibility of applying section 64 in their ..... X X X X Extracts X X X X X X X X Extracts X X X X
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