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TMI Blog1983 (8) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... nd his two minor sons, the former as a partner and the latter as being admitted to the benefits of partnership. Rahim Khan married Smt. Ayshabegam on 22-2-1970. In the period relevant to the assessment year 1972-73, Smt. Ayshabegam retired from the partnership and the firm was reconstituted and the two minors were again admitted to the benefits of partnership. According to the ITO, from the date of this marriage the two minor children became the step-children of the assessee Rahim Khan and so he added their share income to the income of the assessee under section 64(1)(ii) read with section 2(15A) of the Income-tax Act, 1961 (' the Act '). This assessment order was made under section 147 of the Act because at the time of the first assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs could be included in the income of the assessee. 5. The learned counsel for the assessee at the very outset pointed out that section 2(15A) was introduced by the Taxation Laws (Amendment) Act, 1975, with effect from 1-4-1976 and, therefore, for the first four assessment years, 1972-73 to 1975-76, the income of the minors could not be clubbed with that of the assessee and that, therefore, reopening of assessments for those four years was invalid. 6. In cross objection Nos. 24 to 30 (Ahd.) of 1982, which were heard together with these appeals, we have held that reopening for the aforesaid four years was not valid and, accordingly, now we have to consider only the addition regarding the remaining three years, i.e., the assessment years 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is an agreement for that purpose." At page 334, it has been mentioned that no step-relations have got mutual rights of inheritance, and that there is no tie of consanguinity between them. A step-son or a step-mother are not heirs. Thus, from the test regarding the rights of residence, maintenance and inheritance, the learned counsel for the assessee has sought to prove that the children of the former husband are not the step-children of the new husband. These factors regarding residence, maintenance and inheritance, he has connected to another consideration in this case, namely, that the purpose of section 64 was to prevent diversion of income while at the same time maintaining control over it. Since the new husband had no such conn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question in Prem Bhai Parekh's case was quite different, namely, the strict construction regarding directness of the connection. 9. With regard to the arguments of the assessee's counsel on the purpose of section 64, there can be no two opinions about its soundness. However, we have also to consider the question whether the child includes a step-child generally and the effect of section 2(15A). We have to consider whether the purpose of section 64 would be an overriding factor irrespective of the clear meaning and applicability of section 2(15A). The question is whether under Muslim law a child of a former husband is a step-child of the new husband because section 2(15A) would apply only in such a case. 10. According to the learned coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose of legal rights and liabilities---Budday Sait v. Zoonoo Bee [1853] Mad. SDA 199 (' there being between the two no tie of consanguinity '), Mt. Begum v. Jalal Din [1917] 52 Punjab Re 182 (No. 60)." [Emphasis supplied] Muslim law regarding adoption throws some further light on this problem. Adoption is not recognized in Muslim law and adoption does not confer upon any person the status of a child except where there is a custom or is permitted by the provisions of any law for the time being in force. The custom of adoption was abrogated by a verse of the Quran. Muslim law does not recognize it and it was forbidden by the Quran (ref. page 211 of Mohammedan Law of B.R. Verma, Fifth edition). The purpose of this is not to discuss Muslim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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