1. No appearance in court on behalf of the assessee.
2. In this reference we are not satisfied that there has been proper service effected on the respondents. We found from the papers on the previous occasion that a notice of the reference application had been duly drawn up and the said notice together with a fee of Rs. 5 seems to have been handed over in the office of the Sheriff of Bombay on September 21, 1976. The necessary rubber stamp together with the signature of the Deputy Sheriff is found on the duplicate copy of the said notice in the papers. The matter was then kept back to ascertain whether in fact the registered packet had been despatched by the Sheriff's office to the assessee.
3. We may also point out that in this case, as in many other matters, the address of the assessee given on the notice is very sketchy, For example in the instant case, the address given is Mr. and Mrs. Valentino F. Pinto, Mapuca, Goa. It is difficult to conceive that the Postal Department would be able to serve an any one at this general address without any reference to the business, road, or specific locality. If this be the address to which the notices are sent, then, it may not be possible to act on a presumption of service although such notices could have been despatched by registered post. It will be proper if the Commissioner or those representing the Commissioner put proper address of the assessees in the reference itself and would prepare the notice for service at the proper detailed address.
4. We find it unnecessary to dispose of the reference on the ground that no proper service has been effected. We also find it unnecessary to postpone the hearing any further to enable a specific notice being given to the assessees. The matter has been kept back on a number of occasions but nothing has been done by the Central Government advocate. This is also because the questions referred to us seem to be covered, though not specifically but in principle, by the decisions of our High Court in CIT v. Purushottam Gangadhar Bhende : 106ITR932(Bom) , which decision was subsequently applied in another case, namely, CGT v. Aleixo P. Velho : 143ITR372(Bom) .
5. In the present reference, the following questions stand referred to us :
'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the income that accrues to husband and wife governed by the Portuguese Civil Code during their 'coverture' should be assessed equally and separately in the individual hands of each spouse and not in the hands of individuals ?
(ii) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal is right in law in setting aside the orders of the Income-tax Officer and the Appellate Assistant Commissioner and in directing the Income-tax Officer to assess the income from the business in the hands of husband and wife separately ?'
6. In Purushottam Gangadhar Bhende's case : 106ITR932(Bom) , although the income being considered was income from house property, the provisions of the Portuguese Civil Code as well as article 1192 of the Commercial Code were considered and it was observed that the respective half shares of the husband and wife in the income from the house property, which was the property of the communion of the husband and wife married according to the custom of Goa, should be assessed separately in equal shares in the hands of each of them, and not in the hands of 'the body of individuals' of the communion of husband and wife. This ratio would seem to apply to all type of income and cannot be restricted to house property. If that be so, the two questions referred to us can be answered without further elaborate discussion, either factual or legal.
7. In the result, we answer the question as under :
(1) In the affirmative and in favour of the assessee.
(2) In the affirmative and in favour of the assessee.
8. Since there is no appearance on behalf of the assessee, we direct the parties do bear their own costs.