Skip to content


C. Arunachalam Vs. Commissioner of Income-tax, Karnataka, Bangalore - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKarnataka High Court
Decided On
Case NumberIncome-tax Reference Case Nos. 89 and 90 of 1976 and 85 of 1978
Judge
Reported inILR1984KAR1387; [1985]151ITR172(KAR); [1985]151ITR172(Karn); 1986(1)KarLJ150
ActsIncome Tax Act, 1961 - Sections 64, 64(1) and 263
AppellantC. Arunachalam;commissioner of Income-tax, Karnataka-i, Bangalore
RespondentCommissioner of Income-tax, Karnataka, Bangalore;k. Anantha Shenoy
Appellant AdvocateK.R. Prasad and ;S.P. Bhat, Advs.
Respondent AdvocateK. Srinivasan, Adv.
Excerpt:
- religious endowments act, 1863 [repeal by act ii /1927] section 6 of act ii of 1927 & section 8; [a.s. bopanna, j] application of the repealing act held, section 8 would clearly indicate that the repeal of religious endowments act would apply in so far as hindu religious endowments to which the act applies. but in so far as the jain religious endowments, the repeal by act (ii) of 1927 is not applicable. further, the religious endowments act 1863 has been repealed only in so far as it applies to hindu religious endowments and the repeal is specific to that extent and therefore the applicability of the act to the jain religious endowments act, 1863 is still applicable to the jains of dakshina kannada. section 10; maintainability of application under power of the district judge to.....jagannatha shetty, j.1. the questions referred in these i.t.r.cs. relate to the scope of s. 64(1)(i) and (ii) of the i.t. act, 1961 (called shortly 'the act'). i.t.r.cs. nos. 89 and 90 of 1976 are at the instance of the assessee, i.t.r.c. no. 85 of 1978 is at the instance of the revenue. the facts, in brief, are these : i.t.r.cs. nos. 89 and 90 of 1976 : sri c. arunachalam, the assessee, was a partner in the firm of m/s. sunrise industries syndicate representing his huf. his wife was also a partner in that firm. sri c. arunachalam was also a partner in that capacity in another firm called m/s. sunrise industries. there, his minor children had been admitted to the benefits of the partnership. for the assessment year 1971-72, sri c. arunachalam as an individual filed his return of income.....
Judgment:

Jagannatha Shetty, J.

1. The questions referred in these I.T.R.Cs. relate to the scope of s. 64(1)(i) and (ii) of the I.T. Act, 1961 (called shortly 'the Act').

I.T.R.Cs. Nos. 89 and 90 of 1976 are at the instance of the assessee, I.T.R.C. No. 85 of 1978 is at the instance of the Revenue.

The facts, in brief, are these :

I.T.R.Cs. Nos. 89 and 90 of 1976 :

Sri C. Arunachalam, the assessee, was a partner in the firm of M/s. Sunrise Industries Syndicate representing his HUF. His wife was also a partner in that firm. Sri C. Arunachalam was also a partner in that capacity in another firm called M/s. Sunrise Industries. There, his minor children had been admitted to the benefits of the partnership. For the assessment year 1971-72, Sri C. Arunachalam as an individual filed his return of income made up of property income and refund of annuity deposit. The ITO completed the assessment determining the assessee's total income at Rs. 12,368 made up of property income of Rs. 10,643 and refund of annuity deposit (other source) of Rs. 1,725 in the status of an individual. For the assessment year 1972-73, the ITO made a similar assessment accepting the return of the assessee. In both the said assessments, the share income accruing to the wife and children in the said firms was not brought to tax in the assessee's hands.

I.T.R.C.No. 85 of 1978 :

Sri K. Anantha Shenoy, the assessee herein, was a partner representing his HUF in the firm of M/s. Gajanana Cloth Stores (Wholesale). His three minor children were also admitted in that firm to the benefits of the partnership. The assessee as an individual filed his return of income being the remuneration received from the firm of M/s. Gajanana Cloth Stores. The ITO accepted the same and completed the assessment in the status of an individual.

2. The Commissioner of Income-tax, in exercise of his powers under s. 263, revised the assessments in all above cases and directed that the share income of the wife and minor sons of the assessee should be clubbed with the individual income of the assessee.

3. In the appeals against the orders of the Commissioner, the Tribunal took contradictory views. In the appeals preferred by Sri C. Arunachalam, the Tribunal concurred with the view taken by the Commissioner. But in the appeal preferred by Sri K. Anantha Shenoy, the Tribunal reversed the order of the Commissioner by following the decision dated June 7, 1975, of the Delhi Bench of the Appellate Tribunal in the case of Kanhayalal Rajagarhia. The Tribunal held that s. 64(1)(ii) has no application to the case, since Sri Anantha Shenoy was a partner in the firm representing his HUF.

4. The question for consideration is, when the karta of HUF is a partner in a firm along with his wife, whether the wife's share income from the firm could be assessed in the hands of her husband in his individual capacity. Another question for consideration is, when the karta of a HUF is a partner in a firm and when the karta's minor children have been admitted to the benefits of that partnership, whether the minor's share income from the firm could be brought to tax in the hands of the father in his individual status.

5. The answer to each question turns on the exact connotation of the words 'any individual' and 'such individual' occurring in s. 64(1)(i) and (ii) of the Act.

6. The original s. 64 of the Act was re-numbered as s. 64(1) by the Taxation Laws (Amendment) Act, 1970. By the Taxation Laws (Amendment) Act, 1975, sub-s. (1) of s. 64 was replaced by a new sub-s. (1), but we are concerned only with s. 64(1) as it stood prior to its amendment by the Taxation Laws (Amendment) Act, 1975 (which came into force from April 1, 1975), since the present references pertain to the assessment years prior to 1975-76.

7. The relevant portion of that section is as follows :

'Section 64(1). In computing the total income of any individual, there shall be included all such income as arises directly or indirectly -

(i) to the spouse of such individual from the membership of the spouse in a firm carrying on a business in which such individual is a partner;

(ii) to a minor child of such individual from the admission of the minor to the benefits of partnership in a firm in which such individual is a partner.'

8. According to Mr. Srinivasan, learned counsel for the Revenue, this section requires that, - (i) there should be a partnership firm carrying on business; (ii) the spouse and/or minor child of an individual should be a partner or admitted to the benefits of the partnership firm; and (iii) such individual should also be a partner of that firm. If these factors co-exist, then s. 64 operates and the share income of the spouse and/or the minors from such firm should be included in the total income of the individual for the purpose of assessment.

9. Mr. Sarangan and Mr. Prasad characterised the submission of Mr. Srinivasan as purely a traditional literal-minded approach without due regard to the intention of the Legislature or the purpose for which s. 64(1) was enacted. The learned counsel urged that the words 'any individual' and 'such individual' occurring in s. 64(1) do not cover an individual like the karta who becomes a partner in a firm in his representative capacity. The learned counsel referred to us the legislative background of the said section to drive home their point that s. 64(1) was never intended to include such an individual whose share income stands excluded from the assessment in his individual status.

10. To appreciate these rival contentions, it is necessary to refer to the corresponding section under the Indian I.T. Act, 1922.

11. Prior to 1937, there was no provision in the Indian I.T. Act, 1922, similar to s. 64(1)(i) and (ii) of the Act. It was only by the Amendment Act, 1937, that for the first time the concept of including the income of wife or minor children with that of the husband/father was introduced by s. 16(3) in the Indian I.T. Act of 1922.

12. That section had history behind it. The Income-tax Enquiry Report, 1936, pointed out that there were innumerable cases of partnerships where the husbands and fathers provided shares for their wives and minor children for the purpose of evading payment of income-tax with regard to their shares in the profits. It was stated that the husbands used to enter into nominal partnerships with their wives and they also admitted their minor children to the benefits of partnerships of which they were members. In order to prevent this evil being practised, the said Report contained the following recommendations :

(a) Wife's income :

'... We recommend, therefore, that the income of a wife should be deemed to be, for income-tax purposes, the income of her husband, but that where the income of the wife is derived from her personal exertions and is unconnected with any business of her husband, her income from her personal exertions up to a certain limit, say Rs. 500, should not be so included.'

(b) Income of minor children :

'We suggest that the income of a minor should be deemed to be the income of the father, (i) if it arises from the benefits of partnership in a business in which the father is a partner, or (ii) if, being the income of a minor other than a married daughter, it is derived from assets transferred directly or indirectly to the minor by his or her father or mother, (iii) if it is derived from assets apportioned to him in the partition of a Hindu undivided family.'

These recommendations were duly considered by the Central Government and as a result thereof, Act IV of 1937 was enacted introducing s. 16(3) in the Indian I.T. Act, 1922. The relevant portion of s. 16(3) read thus :

Section 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 -

(i) from the membership of the wife in a firm of which her husband is a partner;

(ii) from the admission of the minor to the benefits of partnership in a firm of which such individual is a partner;'.

13. The scope of this section was considered by the Supreme Court in CIT v. Sodra Devi : [1957]32ITR615(SC) . The question that arose for consideration in that case was whether the word 'such individual' in s. 16(3)(a)(ii) included also a female, and the income of minors derived from the partnership firm to which they had been admitted to the benefits was liable to be included in the income of the mother who was a partner in that partnership. Bhagwati J., speaking for the majority view, pointed out (at p. 620) :

'The word 'assessee' is wide enough to cover not only as 'individual' but also a Hindu undivided family, company and local authority and every firm and other association of persons or the partners of the firm or the members of the association individually. Whereas, the word 'individual' is narrower in its connotation being one of the units for the purposes of taxation than the word 'assessee', the word 'individual' has not been defined in the Act and there is authority for the proposition that the word 'individual' does not mean only a human being but is wide enough to include a group of persons forming a unit. It has been held that the word 'individual' includes a corporation created by a statute, e.g., a university or a council, or the trustees of a baronetcy trust incorporated by Baronetcy Act. It would also include a minor or a person of unsound mind. If this is connotation of the word 'individual', it follows that when section 16(3) talks of an 'individual', it is only in a restricted sense that the word has been used. The section only talks of 'individual' capable of having a wife or minor child or both. It, therefore, necessarily excludes from its purview a group of persons forming a unit or a corporation created by a statute and is confined only to human being who in the context would be comprised within that category.'

The learned judge continued (at p. 628) :

'... Having regard to the circumstances which prevailed at the time when the Enquiry Committee made its report, the only mischief which they sought to remedy by their recommendations was the one resulting from the male assessees indulging in such tactics for the evasion of income-tax by creating nominal partnerships between themselves and their wives on the one hand and themselves and their minor children on the other.'

and at page 629 :

'It is clear from the above extracts that the evil which was sought to be remedied was the one resulting from the widespread practice of husbands entering into nominal partnerships with their wives and fathers admitting their minor children to the benefits of the partnerships of which they were members. This evil was sought to be remedied by the enactment of section 16(3) in the Act. If this background of the enactment of section 16(3) is borne in mind, there is no room for any doubt that howsoever that mischief was sought to be remedied by the amending Act, the only intention of the Legislature in doing so was to include the income derived by the wife or a minor child, in the computation of the total income of the male assessee, the husband or the father, as the case may be, for the purpose of assessment...'

14. Sodra Devi's case : [1957]32ITR615(SC) has thus laid down the following three principles : (i) Section 16(3) aimed at foiling husbands' attempt to avoid or reduce the incidence of tax by entering into nominal partnerships with their wives. It was also to prevent tax avoidance by fathers admitting their minor children to the benefits of partnerships of which they were members; (ii) that the words 'any individual' and 'such individual' occurring in s. 16(3) were restricted in their connotation and necessarily excluded from its purview a group of persons forming a unit of assessment; and (iii) the words 'any individual' and 'such individual' were intended to cover the male of the species and did not include the female of the species.

Section 64(1) of the I.T. Act 1961, has been modelled upon s. 16(3) of the Indian I.T. Act, 1922. It may not be inappropriate also to state that s. 64(1) of the Act is a successor to s. 16(3) of the Indian I.T. Act, 1922, with the substitution of the word 'spouse' for the word 'wife' occurring in s. 16(3). The word 'spouse' was substituted since the Legislature did not accept the view of the Supreme Court in Sodra Devi's case : [1957]32ITR615(SC) that the word 'individual' meant only the male of the human species. According to the legislature, it meant a parent, which may be either a male or a female and so it has since been made clear beyond doubt. That, however, does not mean that the other observations in Sodra Devi's case : [1957]32ITR615(SC) are not relevant for considering the scope of s. 64(1). Those observations are, indeed, very much relevant and must become the real focus to consider the scope of s. 64(1)(i) and (ii) of the Act against the backdrop of the legislative history.

15. But Mr. Srinivasan urged that the intention of the Legislature should be primarily gathered from the words which are used and the court should not depart from this normal rule of construction in this case. According to him, s. 64(1) refers to an individual and a partnership firm. An individual alone could become a partner in a firm and the individual is an assessable entity under the Act. We need not, therefore, consider whether that individual is a partner in his personal capacity or in his representative capacity. The section is automatically attracted when the individual and the spouse of such individual, of such individual, the individual and the minor child of such individual, as the case may be, are members in one and the same firm. The learned counsel in support of these contentions relied upon the Full Bench decision of the Allahabad High Court in Sahu Govind Prasad v. CIT : [1983]144ITR851(All) and the decision of the Madras High Court in CIT v. S. Balasubramaniam : [1984]147ITR732(Mad) .

16. We shall presently consider these decisions, but before we do so, it will help the exposition which follows, if we explain the court's functions with respect to statutes lumped under the single term 'interpretation'. We know of no statute which merely declares a rule, with no purpose or objective behind. Every statute, whether addressed to individuals or institutions, has a aim and purpose. That could be gathered only by a rational study of the law. A rational study of law is, to a large extent, a study of its history or the path of the law. History must be a part of the study because, without it, we cannot know the precise scope of rules. We cannot find out why a rule of law has taken its particular shape. Such a study should be the first step towards an enlightened scepticism.

17. In every country, and more so in a developing country, the old laws yield place to new and so too the creative powers of courts in the art of interpretation of statutes. The strict constructions which go by the letter of law dominated the legal scene in the 19th century. The strict constructionists stood by the 'golden rule' laid down in Grave v. Barrison [1857] 6 HL 61. The Lord Chancellor said there, that courts should 'adhere as rigidly as possible to the express words that are found and to give those words their natural and ordinary meaning'. But the modern trend has been not all that way. The art of interpretation has undergone modification. The courts now look to the purpose or intent, scheme or design of the legislation and add its own contribution by filling in gaps.

18. Professor Reed Dickerson in his book 'The Interpretation and Application of Statutes' states (at p. 15) :

'... Whether the statute is clear or obscure, whether or not it adequately resolves the current issue, and whether it can be applied as it came from the legislative oven or must be remoulded, the court should first examine it in its proper context to discover, if possible, what it most probably means. Then, after measuring the legislative contribution, the court, where necessary, may add its own contribution.'

'A judge should not be a servant of the words' says Lord Denning (The Discipline of Law, page 56) and he went on to add 'The Judge should not be a mere mechanic in the power house of Semantics. He should be a man in charge of it'. In his recent book 'The Closing Chapter', Lord Denning had something more to state (at p. 98) :

'Look at the spirit :

During the last 50 years, the 'golden rule' has been abandoned. The Judges always say that they look for the 'Intention' of the Legislature. That is the same thing as looking for its 'purpose'. They do it in this way; they go by the words of the section. If they are clear and cover the situation in hand, there is no need to go further. But, if they are unclear or ambiguous or doubtful, the Judges do not stop at the words of the section. They call for help in every direction open to them. They look at the statute as a whole. They look at the social conditions which gave rise to it. They look at the mischief which it was passed to remedy. They look at the 'factual matrix'. They use every legitimate aid. By this means they clear up many things which would be unclear or ambiguous or doubtful'.

19. This is how the courts with their creative powers have recently responded to what we may call it a ground-clearing exercise where the words of a statute are not so plain and unambiguous. To put it shortly, the judges should not follow a blinkered way to lay down the law. They should use their hindsight as well.

20. So far as the fiscal statutes are concerned, we must remember one more principle. The provisions in a fiscal statute are not to be so construed as to furnish a chance of escape and a means of evasion. In case of doubt, the fiscal statute should be construed in favour of and beneficial to the subject.

21. Now, we may revert to the question for consideration. The crux of the question is whether the words 'any individual' and 'such individual' occurring in s. 64(1) include the karta of a HUF. At the heart of the question is the difference between an individual becoming a partner in his personal capacity and an individual becoming a partner in his representative capacity.

22. The legal position of the karta when he becomes a partner in a firm has been explained by Subba Rao J., as he then was, in CIT v. Bagyalakshmi & Co. : [1965]55ITR660(SC) :

'A partner may be the karta of a joint Hindu family; he may be a trustee; he may enter into a sub-partnership with others; he may, under an agreement, express or implied, be the representative of a group of persons; he may be a benamidar for another. In all such cases, he occupies a dual position. Qua the partnership, he functions in his personal capacity; qua the third parties, in his representative capacity.'

23. The karta of a HUF unlike other individuals has thus a two-fold capacity. Qua the partnership, he functions in his personal capacity, because the rights of partnership are governed by the Partnership Act, 1932. The relation of partners arises from contract and not from status. The partnership is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. The HUF may be a person or unit of assessment under the Act, but it cannot become a partner in a firm. Qua, the third parties, the karta who becomes a partner retains his representative capacity. He is liable to account for the assets of the family or income received by him for and on behalf of the family. Therefore, the share income accrued to him in the partnership firm can be brought to tax only in the assessment of the HUF and not in his individual status.

24. This is the essential difference in tax liability between the karta-partner and other partners under the Act. But Mr. Srinivasan urged that this difference has no material bearing on the tax treatment contemplated under s. 64(1) of the Act. According to him, s. 64(1) does not catch the income assessable in the hands of the HUF. It only seeks to add the income of the spouse or minor children in the computation of the individual's assessment. Since the karta is also an individual and necessarily so as a partner, the operation of s. 64(1) cannot be excluded to the cases in question.

25. It is true that this reasoning has been adopted by the High Courts of Allahabad and Madras.

26. In Sahu Govind Prasad v. CIT : [1983]144ITR851(All) [FB], Satish Chandra C.J., speaking for the Full Bench of the Allahabad High Court, has observed 'that section 64 requires an individual and his wife and/or minor children to be partners of each other. That is enough. Their other relationships inter se are not relevant. The fact that he is also the karta, guardian or trustee or benamidar, etc., is immaterial' (p. 862).

27. The learned Chief Justice went on to state (at p. 862) :

'An HUF is itself an assessable entity or unit. The income earned by the karta is taxed in the hands of the HUF. No part of such income is computed in his individual assessment. When s. 64 speaks of 'computation of the total income of any individual', it ex hypothesi excludes from such computation, income which is assessable in the hands of the HUF. Section 64 does not deal with the share income of the karta from the firm. It is confined to the clubbing together of the share income of the spouse or minor children of the individual from the firm, with such other income of that individual which is assessable in his individual status. It is thus clear that the share income of the karta from the partnership firm is not exigible to tax a second time under s. 64.

In our opinion, the phrase 'in which such individual is a partner' occurring in s. 64 includes a human being who may be the karta of an HUF...'

28. While disagreeing with the view taken by the other High Courts, there and then the learned Chief Justice concluded (at p. 864) :

'As mentioned above, s. 64 does not catch the income which is assessable in the hands of the HUF. It confines itself to the case of an individual assessee. It seeks to add the income of the spouse or minor child in the computation of the individual's assessment. It is necessarily confined to the share income of the individual from the partnership firm. If the share income of the individual from the partnership firm is liable to be included while computing such individual's total income, it may be so included. That will be when the individual is a partner in his personal capacity. But if he is a partner in a representative capacity, with the result that the entire income that he gets as his share from the firm is assessed in the hands of the entity which he represents, then that share income is outside the purview of s. 64. None the less, the share income of the spouse or the minor children from that firm is liable to be included while computing the total income of such individual in his assessment in the status of an individual.'

29. We cannot, with respect, accept the soundness of this reasoning. On the contrary, we find ourselves, unhesitatingly, driven to the opposite conclusion when we seek to discern the legislative purpose. The statement of objects and reasons which led to the passing of Act IV of 1937 was in the following terms :

'Reference is made in sections 1 and 4 of Chapter III of the Income-tax Enquiry Report, 1936, to the practice of avoiding taxation by means of nominal partnerships between husband and wife or parent and minor child or by the nominal transfer of assets to a wife or minor child (or to an 'association' consisting of husband and wife) when there is no substantial separation of the interests of the assessee of the assessee and the wife or child. These practices are reported to have become very widespread already, with considerable detriment to the revenue, and there is little doubt that if they are not checked there will be progressive deterioration. The proposals in the report regarding the aggregation of the incomes of husband and wife go beyond the immediate necessities of the case and to that extent their adoption would involve the admission of new principles which the Government of India do not desire to establish in advance of the general public discussion of the report which has been so drafted as to deal only with the abuses to which I have referred.'

30. We may also hark back to the recommendation No. (iii) made in the Income-tax Enquiry Report, 1936, which we have extracted earlier. While dealing with the minor's income, the report said thus : 'the income of a minor derived from assets apportioned to him in the partition of a Hindu undivided family' should be deemed to be the income of the father. But this recommendation was not accepted by the Government while enacting s. 16(3) of the Indian I.T. Act, 1922. There is no dispute on this aspect. Section 16(3) of the Indian I.T. Act, 1922, as we have already observed, was primarily designed to strike at the evil resulting from the widespread practice of husbands entering into nominal partnerships with their wives and fathers admitting their children to the benefits of partnerships. It was solely aimed at foiling an individual's attempt to avoid or reduce the incidence of tax by admitting the spouse as a partner, or getting a minor child admitted to the benefits of partnership in a firm on adopting any other modes covered by the section (see CIT v. Manilal Dhanji : [1962]44ITR876(SC) . The Legislature in enacting the provisions of s. 16(3) obviously had no intention whatsoever to disturb the prudent management of the family affairs by the karta of a HUF. It would be, therefore, illogical to extend the operation of s. 64(1) to such a person.

31. Let us take an illustration, which can be stated in a few words, to show how the social end which was aimed at by the section is obscured by the construction suggested by Mr. Srinivasan and supported by the decision in Sahu Govind Prasad's case : [1983]144ITR851(All) [FB]. Suppose the karta is a partner in a firm with a contribution of 50 per cent. capital. Obviously, according to the reasoning in the Sahu Govind Prasad's case, the 50 per cent. share income stands excluded from the scope of s. 64(1) of the Act, since it is liable to be included in the assessment of the HUF. If the same karta instead of contributing 50 per cent. capital, invests only 25 per cent. in his name and 10 per cent. in the name of his wife and gives 15 per cent. to his two minor sons, then that 25 per cent. of the karta's share income would be brought to tax in the HUF assessment. The remaining 25 per cent. of the share income of the wife and minor children would be aggregated with the separate income of the karta and taxed in his assessment in the status of an individual. This would be the anomalous position and a manifest contradiction of the apparent purpose of the section. Not merely that, it would immeasurably impair the rights of the karta and HUF which the Parliament, in our opinion, never intended.

32. If s. 64(1) ex hypothesi excludes income assessable in the hands of the HUF, there is every reason not to club the share income of the wife and minor child of the karta-partner with his personal income. That could be achieved by adopting the alternate construction, that is, by reading down the scope of the word 'individual' in s. 64(1)(i) and (ii) and confining the same to the one whose share income is liable to be taxed in his hands. It is a well known principle that, if two constructions are equally possible and reasonable, the construction more favourable to the subject must be preferred.

33. In collector of Customs v. Digvijasinji Spinning and Weaving Mills Ltd., : 1983ECR2163D(SC) , the Supreme Court observed :

'It is an equally well settled principle of construction that 'where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system.'

34. There is yet another reason why we should not accept the construction suggested by Mr. Srinivasan. The constitutional validity of s. 16(3)(a)(i) of the Indian I.T. Act, 1922, was upheld by the Supreme Court by confining the same to a few of the intimate members of a family who ordinarily are under the protection of the assessee and are dependent upon him. This is what the Supreme Court observed in Balaji v. ITO : [1961]43ITR393(SC) :

'The object sought to be achieved was to prevent the prevalent abuse, namely, evasion of tax by an individual doing business under a partnership nominally entered with his wife or minor children. The scope of the provisions is limited only to a few of the intimate members of a family who ordinarily are under the protection of the assessee and are dependants of him. The persons selected by the provisions, namely, wife and minor children, cannot also be ordinarily expected to carry on their business independently with their own funds, when the husbands or the father is alive and when they are under his protection. Doubtless some of the said partnerships may be genuine and the wife or minor children may have contributed capital to the business; but the provisions do not in any way affect their rights and even the liability inter se between the husband and the wife or the minor children, as the case may be, in respect of the tax paid. It is true that in computing the total income of an individual for the purpose of assessment, their income in their capacity as partners shall be included in the income of the individual; but the section does not prevent the husband or the father, as the case may be, from debiting against them in the partnership accounts that part of the tax referable to the share or shares of their income. It may be that a father or a husband may have to pay tax at a higher rate than ordinarily he would have to pay if the addition of the wife's or children's income to his own brings his total income to a higher slab. But it may not necessarily be so in a case where the income of the former is not appreciable; even if it is appreciable, he can debit a part of the excess payment to his wife and children. In short, the firm, though registered, would be treated as a distinct unit of assessment, with the difference that, unlike in the case of a registered firm, the entire income of the unit is added to the personal income of the father or the husband, as the case may be. This mode of taxation may be a little hard on a husband or a father in the case of a genuine partnership with wife or minor children, but that is offset, to a large extent, by the beneficent results that flow therefrom to the public, namely, the prevention of evasion of income-tax, and also by the fact that, by and large, the additional payment of tax made on the income of the wife or the minor children will ultimately be borne by them in the final accounting between them. In these circumstances, we cannot say that the provisions of section 16(3) of the Act impose an unreasonable restriction on the fundamental rights of the petitioner under article 19(1)(f) and (g) of the Constitution.'

35. This is also the reason with which the validity of s. 64(1)(i) and (ii) could be sustained. The wife and children envisaged s. 64(1)(i) and (ii) of the Act are those that are dependent upon the individual. They are dependent upon his personal earning and not those who have a right to be maintained out of the family funds by being members of the HUF. If we ignore this principle and widen the scope of the word 'individual' by including a partner in his representative capacity, we would be driving the section perilously close to the realm of arbitrariness and unconstitutionality. It is well settled that a statute should be so construed as to avoid grave doubt as to its constitutional validity.It should not be given a broad construction, if its validity could be saved by a narrow one.

36. The decision of the Madras High Court in CIT v. Balasubramaniam : [1984]147ITR732(Mad) proceeded solely on the literal meaning of the word 'individual' in s. 64(1)(ii) ignoring altogether the purpose for which the section was enacted. V. Balasubramanyan J., who spoke for the Bench of the Madras High Court, observed (p. 738) :

'We prefer to rest our decision on a simple understanding of the simple words of s. 64(1)(ii). The section's only requirement is that the minor child and its father must both be in the same firm; the section does not require that the father's share income must find a place in the father's total income as an individual.'

37. The learned judge further observed (p. 738) :

'Mr. Srinivasamurthy is recorded as telling Tribunal that it would be exceedingly 'strange' that minor children's share income from a firm must get taxed in the father's individual assessment when his own share income from the same firm is not so included. Before us learned counsel used a harsher epithet. He said that was 'atrocious'. We must dismiss these remarks as tax-planning rhetoric. The father's share income may get included in his total income or (to use a Goldwynism) it may get included out of his total income, depending upon whether he represents himself or his joint family in the firm. That has nothing whatever to do with the tax treatment under s. 64(1)(ii) of his minor children's share income from the partnerships.'

38. We do not think that the provisions of s. 64(1) are so clear as to avoid even a reference to the legislative intent. The very fact that it is a debated point and the courts have taken different views itself indicate that the issues involved are complex and the meaning of the words are not free from difficulty. Even otherwise, it is our experience that the truth is generally not on the surface. It lies somewhere under the surface. It is therefore, proper to search for the legislative intent before coming to any conclusion.

39. In CIT v. Sanka Sankaraiah : [1978]113ITR313(AP) , the Andhra Pradesh High Court differed from the view taken by the Bench decision of the Allahabad High Court in Madho Prasad v. CIT : [1978]112ITR492(All) . S. Obul Reddy C.J., speaking for the Bench, observed (p. 318) :

'If we are to agree with the learned counsel for the Revenue that section 64 applies to a karta or a trustee, then it would lead to certain absurd situations. Take for instance the case of a trustee as a partner in a firm. If the trustee's spouse or a minor child are to be a partner of that firm, the income realised by the spouse or the minor child in that firm will have to be added to the income of the trustee earned from sources other than partnership in his individual capacity......We are unable to share the view of the Allahabad High Court that the words 'in which such individual is a partner' take in a karta or trustee or representative of a group of persons. The expression 'individual' only takes in a person in his individual capacity and does not take in the karta of a Hindu joint family or a trustee or one who acts as a representative of others.'

40. We respectfully agree with these observations of the learned Chief Justice of the Andhra Pradesh High Court.

41. The Gujarat High Court in Dinubhai Ishvarlal Patel v. Dixit, ITO : [1979]118ITR122(Guj) , has concurred with the view of the Andhra Pradesh High Court. B. J. Divan C.J., who spoke for the Bench, also gave some more reasons in the following terms (at p. 130) :

'It can be said that it is just a chance that the karta was a person whose spouse is also a partner in the partnership firm in which he represents the HUF or the minor child of that karta who represents the HUF in the partnership happens to be admitted to the benefits of the partnership or the spouse happens to be a partner. In neither case, qua the wife or qua the minor child, is he any one else than a representative. It is clear that so far as the HUF is concerned, as was pointed out by the Supreme Court, if a trust is represented in the partnership or if there is a sub-partnership or even a benami partner in any one of these capacities, he is there in no capacity other than as a representative. And it is just by chance that he happens to be the very individual whose spouse is also a partner in the same firm or whose minor child has been admitted to the benefits of that partnership firm, but the word 'individual occurring in s. 64(1)(ii) must be given the meaning, as pointed out in Sodra Devi's case : [1957]32ITR615(SC) , to mean a person who is capable of having a spouse or who is capable of having a minor child. HUF, trust or a sub-partnership do not fall within either of these categories and, therefore, it is obvious that the provisions mean the word 'individual' as a person who is being assessed merely in his individual capacity because only then can the concept of a 'person who is capable of having a spouse or of having a minor child' will have any applicability. It is, therefore, clear on a consideration of s. 64(1)(ii) read in the light of the decisions of the Supreme Court in Sodra Devi's case : [1957]32ITR615(SC) and in Bagyalakshmi's case : [1965]55ITR660(SC) , that there can be no other meaning except this that the word 'individual' and the words 'such individual' must be confined to a person who is being assessed in his individual capacity and in none else.'

42. Mr. Srinivasan pointed out that the above reasoning is not correct since the Supreme Court in Sodra Devi's case : [1957]32ITR615(SC) , has not held that the word 'individual' and the words 'such individual' must be confined to a person who is being assessed in his 'individual capacity' and none else. It seems to us that Mr. Srinivasan is right to that extent. The Supreme Court has not expressly stated so in Sodra Devi's case. But if we look at the ratio of the decision of the Supreme Court in Sodra Devi's case, in the light of the Income-tax Enquiry Report, 1936, and the decision of the Central Government for the purpose of enacting s. 16(3) in the Indian I.T. Act, 1922, it would be clear that the words 'such individual is a partner' occurring in s. 64(1) cannot include an individual who may be the karta of a HUF or any other person in his representative capacity. At the risk of repetition, we may again point out that the provisions of the section were intended to ensure that the assesses-individual does not escape his personal liability to income-tax by different type of arrangements. The Explanation 1 to s. 64(1) introduced by the Finance Act, 1979, also supports our view.

43. The Punjab and Haryana High Court in CIT v. Anand Sarup [1980] 121 ITR 873 and the Delhi High Court in Prayag Dass Rajgarhia v. CIT : [1982]138ITR291(Delhi) , also agreed with the view taken by the Andhra Pradesh High Court and the Gujarat High Court.

44. The questions of law referred by the Tribunal for the opinion of this court have been referred to this Full Bench.

45. The question of law referred in I.T.R.C. No. 89/76 is :

'Whether the Tribunal was correct in holding that section 64(1)(i) and (ii) of the Income-tax Act, 1961, was applicable on the facts of the case and, therefore, the income of the wife and the minor children from the share in the firms of Messrs Sunrise Industries Syndicate and M/s. Sunrise Industries had to be included in the assessee's individual assessment ?'

46. The question of law referred in I.T.R.C. No. 90/76 is :

'Whether the Tribunal was correct in holding that section 64(1)(ii) of the Income-tax Act, 1961, was applicable on the facts of the case and, therefore, the income of the minor children from the share in the firm of M/s. Sunrise Industries had to be included in the assessee's individual assessment ?'

47. The question of law referred in I.T.R.C. No. 85/78 is :

'Whether the Appellate Tribunal was justified in holding that section 64(1)(ii) of the Income-tax Act, 1961, is not applicable to the facts of the case and, therefore, the income of the minor children from the share in the firm of Messrs Gajanana Cloth Stores had to be excluded from the assessee's individual assessment ?'

48. Our answer to the question referred in I.T.R.C. No. 89/76 is in the negative and in favour of the assessee.

49. Our answer to the question referred in I.T.R.C. No. 90/76 is in the negative and in favour of the assessee.

50. Our answer to the question referred in I.T.R.C. No. 85/78 is in the affirmative and against the Revenue.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //