TMI Blog1991 (8) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... s, which we shall dispose of by this common judgment, are not in the same wording the law point involved is the same, that is the interpretation of section 2(23) and section 64(1) of the Income-tax Act, 1961, for short the "Act", and section 4 of the Indian Partnership Act, 1932. Income-tax Reference No. 13 of 1985 relates to the assessment year 1978-79, Income-tax Reference No. 3 of 1985 relates to the assessment year 1979-80 and Income-tax Reference No. 4 of 1985 relates to the assessment years 1973-74 and 1974-75. In all the cases, the Tribunal, relying on the decision of this court in CIT v. Basanta Kumar Agarwalla [1983] 140 ITR 418, held that the assessing authority could not invoke section 64 of the Act and, accordingly, allowed the appeal. Regarding the facts, we may only state that the assessee was a partner in the partnership firm as a representative of the Hindu undivided family and, in the said firm, the wife/minor child being the partners, the assessing authority, by invoking section 64(1)(i), included the income of the wife/minor child of the said partners of the firm in the assessment of the assessee. Heard Mr. D. K. Talukdar, learned standing counsel for the Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three questions have to be answered in the affirmative and in favour of the assessee. However, as learned counsel for the Revenue has placed before us the decision of the Full Bench of the Allahabad High Court in Sahu Govind Prasad v. CIT [1983] 144 ITR 851, we would like to deal with the submissions of learned counsel and also the ratio laid down by the Full Bench. We would also like to add our views on the law point involved in this case. On a perusal of the judgment of the Full Bench in Sahu Govind Prasad [1983] 144 ITR 851 (All), we find that the question which was referred for opinion is different. The said question runs as follows : "Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the share income of Sidhartha Prasad and Rahul Prasad, the minor sons of the assessee, from the firm, M/s. Arvind Cold Storage, had been rightly included under section 64(ii) of the Income-tax Act, 1961, as the income of the assessee ?" Thus, from the question referred, the position of the karta being member of a partnership firm business was not specifically referred. Whereas, in the case in hand, the question specifically is regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndividual person. He remains an individual, though the income which he earns in the representative capacity is taxable in the hands of the Hindu undivided family or the group or association of persons whom he represents. But, he is also assessable in his individual status. So a karta may be a representative, but lie does not lose his individuality ; he continues to remain an individual also." The Full Bench further held that section 64 of the Act does not catch the income which is assessable in the hands of the Hindu undivided family. It confines itself to the case of an individual assessee and it seeks to add the income of the spouse or minor child in the computation of the individual's assessment.It is not necessarily confined to the share income of the individual from the partnership firm and further if the share income of the individual from the partnership firm is liable to be included while computing such individual's total income, it may be so included. According to the Full Bench, that will be when the individual is a partner in his personal capacity, but if he is a partner in a representative capacity, with the result that the income that he gets as his share from the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irm, etc. This definition of "person" is necessary in the Act as the expression "assessee" means a person by whom any tax or any other sum of money is payable under the Act (section 2(7)). We may also refer to section 5 of the Act which lays down the scope of total income. This section, inter alia, provides that the total income of any previous year of a person who is a resident includes all income from whatever source derived. Thus, "person" includes not only individual but also the Hindu undivided family, company, etc. If we look at section 64 of the Act, we find that the Legislature have used the word "individual" and not the word "person". It is a settled principle of interpretation that where the language is plain and admits of but one meaning, the task of interpretation can hardly be said to arise. The object of interpretation is to discover the intention of Parliament, and it must be deduced from the language used. In a taxing Act, one has to look merely at what is clearly said and there is no room for an intendment. Coming back to section 64, we find that the Legislature has used the word "any individual" in the said section, and this section, inter alia, provides that, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
