1980 (7) TMI 19 - HC - Income Tax

Summary

Issues Involved:
1. Whether the Tribunal could legally infer that the business carried on by the assessee as a partner was also on behalf of his wife, forming a sub-partnership.
2. Whether the provisions of section 64(1) of the Income Tax Act, 1961, apply to a sub-partnership between the husband and wife.

Issue-wise Detailed Analysis:

Issue 1: Sub-partnership Inference
The first question examined whether the Tribunal could legally infer that the business carried on by the assessee as a partner was also on behalf of his wife, forming a sub-partnership. The court analyzed the facts, including the partition and declarations made by the assessee on January 1, 1963, which indicated that the business asset (the share in the firm) no longer belonged to the HUF but was owned equally by the assessee and his wife. The court noted that the mere sharing of profits and losses does not automatically create a partnership. The entire relationship and circumstances must be examined to determine the existence of a partnership as per sections 4 and 6 of the Partnership Act. The court found that the wife's ability to withdraw her share of the capital at any time was inconsistent with the essence of a partnership, which requires joint ownership of partnership property until dissolution. Thus, the court concluded that no sub-partnership existed between the assessee and his wife.

Issue 2: Applicability of Section 64(1)
The second question addressed whether the provisions of section 64(1) of the Income Tax Act, 1961, apply to a sub-partnership between the husband and wife. Section 64(1)(i) includes the income arising directly or indirectly to the spouse of an individual from the membership of the spouse in a firm where such individual is a partner. The court considered whether the alleged sub-partnership could be said to be carrying on a business. It was held that if a sub-partnership was formed with the purpose of sharing the profits of the main firm, the activities of the sub-partnership would constitute a business. Therefore, section 64(1)(i) would apply to such a sub-partnership. Although the court had already concluded that no sub-partnership existed, it answered the second question affirmatively for completeness, given the appealable nature of the matter.

Conclusion:
The court answered the first question in the negative, indicating that no sub-partnership existed between the assessee and his wife. The second question was answered in the affirmative, stating that section 64(1) of the Income Tax Act, 1961, would apply to a sub-partnership if it existed. The judgment governed I.T.R. Nos. 764 of 1975 and 511 of 1977, with each party bearing their own costs.