TMI Blog1961 (11) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... the department for recognition of the partition under section 25A of the Income-tax Act (hereinafter referred to as the Act) . Immediately thereafter, the erstwhile male, coparceners constituted themselves from April 1, 1946, into a firm known as Akula Venkatasubbaiah Sons and the minor sons of the assessee were admitted to the benefits of the partnership. On the basis of the instrument of partnership made on June 19, 1946, the concerned Income-tax Officer granted registration on March 31, 1951, for the assessment year 1947-48 and for subsequent years also on applications made on behalf of the partnership. In the returns submitted by the assessee, the income derived by the minors from the partnership was not included with the result that it was not brought to assessment for the relevant assessment years. Subsequently, the Income-tax Officer started proceedings under section 34(1)(a) of the Act to include such income in the assessment of the assessee by a notice issued on September 6, 1956, which was served on the assessee on September 10, 1956. The assessment was completed under section 34 on August 31, 1957, for the assessment year 1948-49 and on October 28, 1957, for the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax, to furnish, within such period not being less than sixty-days as may be specified in the notice, a return, in the prescribed form and verified in the prescribed manner, setting forth (along with such other particulars as may be required by the notice) his total income and total world income during that year . Sub-section (5) recites: 22.(5) The prescribed form of the returns referred to in sub-sections (1) and (2) shall, in the case of an assessee engaged in any business, profession or vocation, require him to furnish particulars of the location and style of the principal place wherein he carries on his business, profession or vocation and of any branches thereof, the names and addresses of his partners, if any, in such business, profession or vocation and the extent of the share of the assessee and the shares of all such partners in the profits of the business, profession or vocation and any branches thereof . It is manifest from section 34 that it comes into play when there is omission or failure on the part of the assessee to make a return of his income under section 22 or to disclose fully and truly all the material facts necessary for his assessment for that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn and to proceed to determine the assessment under section 23(4) but, having chosen to accept the return as correct, the department cannot now suggest that since the return was incomplete the assessee falls within the sweep of section 34(1)(a) . That being so, we must take it that there was no omission or failure to make a return. Consequently, it is only the second part of section 34(1)(a) that applies to this case. With regard to this part, the point sought to be made by Sri Srinivasa Rao on behalf of the assessee is that there was no obligation on the part of the assessee to give any particulars regarding the partnership or to describe the minors as having been admitted to the benefits of the partnership, since all the material necessary to enable the department to include the income of the minors in the total income of the assessee was available to them. In that position, the omission on his part to mention those facts could not bring the case within the second part of section 34(1)(a) . In support of this argument, our attention was drawn to section 23(5) of the Act which says: 23.(5) Notwithstanding anything contained in the foregoing subsections, when the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessable income of the assessee. There was no obligation on the part of the assessee to include the income of the minors within his total income for computation under section 16(3) . In this connection, it is convenient to look at the terms of section x6 in so far as it bears on the present enquiry. 16.(3) In computing the total income of any individual for the purpose of assessment, there shall be included - (a) so much of the income of a wife or minor child of such individual- as arises directly or indirectly - ... (ii) from the admission of the minor to the benefits of partnership in a firm of which such individual is a partner . Does this section cast any duty on the assessee to include the income of the minors within his total income? In examining the scope of that clause it is useful to remember the phraseology in computing . The import of the section is that the concerned Income-tax Officer is authorised to take into account the income of the minors in determining the total income of the assessee. We are unable to find anything in the language of either section 34 or of section 16 which warrants the conclusion that it is incumbent on the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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