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TMI Blog1981 (9) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... y an individual in the year of his death ? (2) Whether, on the facts and in the circumstances of the case, the 'Tribunal erred in holding that the provisions of section 159 of the Incometax Act, 1961, apply and the provisions of section 64 of the said Act have no application ? (3) Whether, on the facts and in the circumstances of the case, the Tribunal erred in holding that the income did not accrue to the husband of the assessee ? (4) Whether, on the facts and in the circumstances of the case, the Tribunal erred in holding that the Income-tax Officer was not competent to include the income of the assessee's husband in the hands of the assessee ? " We are concerned in this reference with a partnership styled as M/s. Sylvester and Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AC who allowed the same for the detailed reasons contained in para. 5 of his order. He seems to have accepted the assessee's contention that the relationship of husband and wife must exist at the time when the income accrues and that as the income accrued to the husband not on 21 st April, 1963, when he died, but on the making up of the accounts on 30th September, 1963, on which date the relationship of husband and wife had ceased to exist, s. 64(1) of the I.T. Act, 1961, did not apply. The revenue carried the matter in further appeal before the Tribunal. The Tribunal found in favour of the assessee on several different grounds, and each of these aspects indicated in the order of the Tribunal stands reflected in the four questions referre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnandez clubbing the income of her late husband in her assessment. This was notified to the assessee. Her objection to this procedure is kept on record. After considering all the facts of the case, find it necessary to frame an assessment on this party clubbing the income of her husband." In para. 10 of his order, the judicial Member of the Tribunal has dealt with the various infirmities in the approach of the. ITO. As the matter has been succinctly and satisfactorily dealt with in the said paragraph, we reproduce the same in its entirety: " 10. The third objection raised by Mr. Nair against the inclusion of the disputed income in the assessee's assessment is equally formidable. Till the assessment year 1963-64, the income received by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome-tax Officer to be satisfied that it was necessary to reverse the process. We, therefore, hold that the Income-tax Officer was not competent to include the income of the assessee's husband in the hands of the assessee." In our opinion, nothing more is required to be said or added. The Tribunal gave the revenue an opportunity, even at the second appellate stage, to satisfy the Tribunal that it was necessary to reverse the earlier practice. That opportunity also was not availed of by the revenue. The Tribunal appears to be right when it concluded that there was total absence of any reason or material for the ITO to be satisfied that it was necessary to reverse the process hitherto followed. If that be so, question No. 4 has to be answe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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