9911796707
TMI Blog1984 (9) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... he was already under employment of the firm, prior to the joining of Smt. Kamlabai, assessee, as a partner and whether the salary paid of Rs. 4,800 is liable to be added in the income of the assessee ? " The facts stated in the reference are that the assessee is one of the partners of the firm, Gopikishan Ghisalal Gujri. It is stated that in this case, original assessment was completed by September 5, 1977, on a total income of Rs. 10,980. Subsequently, the Income-tax Officer came to know that the husband of the assessee was an employee in the firm, Gopikishan Ghisalal Gujri, and he received a salary of Rs. 4,800. Since the assessee is one of the partners in the firm, it was obligatory on the part of the assessee to disclose the income of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the name was produced to show that the earning spouse possessed a technical or professional qualification and the income earned by him as salary is attributable to the application of his technical or professional knowledge or experience. It was further observed by the Tribunal that at least the assessee or her husband could have filed an affidavit to prove the aforesaid facts. The Tribunal also found that the Income-tax Officer also arrived at a conclusion that the assessee failed to prove that the earning spouse possessed any technical or professional qualification as required to be proved by the exception to section 64(1)(ii) of the Act and even after this finding, the assessee, although she could have produced material before the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proviso and getting the salary exempted, it was necessary to establish facts and as nothing has been placed before the Tribunal, no question of law arises. It was contended that in the earlier year even if the husband of the assessee was in service, the question of section 64 did not arise as the assessee was not a partner of the firm, but when the assessee becomes a partner of the firm, section 64 in terms applies and as section 64 in terms applies, it is for the assessee to establish that the income earned by the spouse of the assessee will fall within the ambit of the proviso to clause (ii) of sub-section (1) of section 64. Section 64 of the Income-tax Act reads : " 64. (1) In computing the total income of any individual, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is not in dispute that no material was placed, but what the learned counsel for the assessee attempted to contend was that it could be inferred from the fact that the husband of the assessee was in the service of this firm in the earlier year when the assessee was not a partner but the question of his being in service in the earlier year is of no consequence as in that year section 64 did not apply and when section 64 is applicable, it was for the assessee to produce material to bring the case within the ambit of the proviso to section 64(1)(ii) quoted above and, in the absence of material produced before the Tribunal, the conclusion that the Tribunal reached is a mere conclusion of fact and no question of law arises. In this view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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