TMI Blog1976 (7) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... re includible in her total income under the provisions of section 64 ? " One S. Viswanathan, who was carrying on business as proprietor of the Central Art Press, died on January 20, 1960. He was survived by his mother, his widow and a minor son, one major daughter and three unmarried minor daughters. These persons, under the Hindu Succession Act, 1956, were entitled to succeed to the estate of the deceased Viswanathan, each inheriting a one-seventh share. On February 23, 1960, a partnership came into existence between the widow of Viswanathan and his major daughter, Kamala, and the three minor daughters and the minor son were admitted to the benefits of that partnership. The mother of Viswanathan had relinquished her interest in favour o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficers of the department, while including the income of the minors in the income of the mother and assessing her in respect of the entire income, simultaneously by way of protective assessment, assessed the respective income of the minors in their hands. However, when the Income-tax Appellate Tribunal finally upheld the action of the authorities in including the income of the minors in the income of the mother under section 64, it had to set aside the protective assessments made against the minors themselves in respect of their shares of income with reference to the three years in question and, therefore, the assessments were set aside. It is in respect of this part of the order of the Tribunal, the tax cases referred to above have come bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e total income of any of any individual for the purpose of individual, there shall be included all assessment, there shall be included-- such income as arises directly or indirectly-- (a) so much of the income of a wife or minor child of such individual as arises directly or indirectly-- (i) from the membership of the wife (i) to the spouse of such individual in a firm of which her husband is a from the membership of the spouse in a is a partner ; firm carrying on a business in which such individual is a partner ; (ii) from the admission of the (ii) to a minor child of such individual minor to the benefits of the partnership from the admission of minor to the in a firm of which such individual is a benefits of partnership in a firm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghter) or both. " (Explanation omitted). The question as to whether the word " individual " occurring in section 16(3) of the Indian Income-tax Act, 1922, connoted only the male of the species or it referred to both the male and the female came up for consideration before the Supreme Court in Commissioner of Income-tax v. Sodra Devi [1957] 32 ITR 615 (SC). In that case the Supreme Court held that the expression "individual" occurring in section 16(3) meant only the male in the species and did not refer to a female and, consequently, the income of the minor children in a firm could not be included in the income of the mother who is a partner in the firm. That decision was arrived at in view of the language and structure of section 16(3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as arises directly or indirectly--... " Thus, the opening of section 64 of the Income-tax Act, 1961, does not give any indication for the purpose of fixing the sex of the individual either as a male or as a female, and, therefore, the word "individual" is capable of denoting a male as well as a female. Similarly, sub-clause (i) of this section uses the neutral expression "spouse" unlike section 16(3) of the Indian Income-tax Act, 1922, which used the expressions, "wife" and "husband". Consequently, the structure and language of section 64 of the 1961 Act clearly shows that the word " individual " contemplated in the section can be a male as well as a female and is not confined only to a male. Mr. Subramaniam, learned counsel for Mrs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom that of section 16(3)(a) of the Indian Income-tax Act, 1922, because, as we pointed out already, the opening part that of section 16(3)(a) does fix up the sex of the " individual " by the use of the expression " his wife " and each one of the sub-clauses of section 16(3)(a) had to be understood with reference to its opening part and, consequently, the word " individual " in the sub-clauses of section 16(3)(a) meant only a male. But that is not the position with regard to section 64 of the Income-tax Act, 1961, where each one of the sub-clauses can be independently given effect to and worked out with reference to the opening portion of section 64 itself, and, as we pointed out already, the opening portion of section 64 uses the word " in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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