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TMI Blog1985 (1) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... ur opinion: " Whether, on the facts and in the circumstances of the case, the Triwas right in holding that section 26 of the Income-tax Act, 1961, did apply to the facts of the case of the assessee and that the Income-tax Officer was justified in law to have taken half share of the property income in the hands of the assessee ? " The question relates to the assessment years 1970-71 and 1972-73 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment in the status of an association of persons, he could not change his option subsequently. Hence, for these two years, the ITO should have included the income from the property in question in their individual assessment only for rate purposes. The matter went up to the Tribunal. The Tribunal held that since the shares were definite and ascertainable, s. 26 was attracted and the income from such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re persons and their respective shares are definite and ascertainable, such persons shall not in respect of such property be assessed as an association of persons, but the share of each such person in the income from the property as computed in accordance with sections 22 to 25 shall be included in his total income". This statutory provision is mandatory. It positively prohibits assessment in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 26 of the I.T. Act. They proceeded on the basis that the ITO has option to assess the income either in the hands of an individual or in the hands of a firm or a HUF or association of persons. In that event, they laid down how the options are to be exercised and the consequence of the exercise thereof. In the present case, the mandatory provisions of s. 26 have to be considered. They leave no c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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