Oza, Actg. C.J.
1. This is a reference made by the Income-tax Appellate Tribunal to answer the following questions :
'Whether, on the facts and in the circumstances of the case, the Hon'ble Tribunal has erred in concluding that Shri Ramlal, husband of the assessee, was not possessed of technical and professional qualification, which may be attributable solely to the earning of the income as per proviso to Section 64(1)(ii) despite evidence that he was already under employment of the firm, prior to the joining of Smt. Kamlabai, assessee, as a partner and whether the salary paid of Rs. 4,800 is liable to be added in the income of the assessee ?'
2. The facts stated in the reference are that the assessee is one of the partners of the firm, Gopikishan Ghisalal Gujri. It is stated that in this case, original assessment was completed by September 5, 1977, on a total income of Rs. 10,980. Subsequently, the Income-tax Officer came to know that the husband of the assessee was an employee in the firm, Gopikishan Ghisalal Gujri, and he received a salary of Rs. 4,800. Since the assessee is one of the partners in the firm, it was obligatory on the part of the assessee to disclose the income of her spouse under Section 145(2) of the Income-tax Act, 1961. The Income-tax Officer was of the view that the assessee failed to disclose material and correct facts and, therefore, he started proceedings under Section 148 of the Act. In response to the service of notice, the assessee took the stand that Ramlal, the husband of the assessee, earned a salary income on account of his technical qualification. It was contended that the case of the assessee is not covered under Section 145(2). The Income-tax Officer was not satisfied with this contention as he held that Ramlal is not possessed of any technical qualification as provided in the proviso to Section 145(2) of the Act. He included the sum of Rs. 4,800 in the total income of the assessee. The initiation of proceedings under Section 147(a) read with Section 148 were not challenged. The Income-tax Officer, therefore, completed the assessment on a total income of Rs. 15,718.
3. The assessee thereafter took up the matter in appeal and the learned Appellate Assistant Commissioner did not find any merit and he maintained the order passed by the Income-tax Officer. Finally, the matter was taken up to the Tribunal in second appeal and the Tribunal also after confirming the initiation of proceedings under Section 147(a) read with Section 148 also confirmed the addition under Section 145(2) of the Act. The Tribunal while deciding the second appeal held that it was for the assessee to produce evidence but no evidence worth the name was produced to show that the earning spouse possessed a technical or professional qualification and the income earned by him as salary is attributable to the application of his technical or professional knowledge or experience. It was further observed by the Tribunal that at least the assessee or her husband could have filed an affidavit to prove the aforesaid facts. The Tribunal also found that the Income-tax Officer also arrived at a conclusion that the assessee failed to prove that the earning spouse possessed any technical or professional qualification as required to be proved by the exception to Section 145(2) of the Act and even after this finding, the assessee, although she could have produced material before the Appellate Assistant Commissioner or before the Tribunal, has not produced any material.
4. Learned counsel appearing for the assessee contended that in the earlier year when the assessee was not a partner of the firm, her husband was in service of this firm and was paid a salary of Rs. 3,000. This itself clearly showed that the salary that he earned was as a result of application of his technical or professional qualification. It was contended that in the case in hand, it appears that the income-tax authorities expected technical or professional educational qualification but in fact as the husband of the assessee was working as a munim, it was only his experience which could be said to be his professional qualification and this, according to the learned counsel, could be inferred from the fact that he was in the service of this firm even before the assessee became a partner of the firm.
5. Learned counsel for the Revenue, on the other hand, contended that even this fact that the husband of the assessee gained the professional qualification by experience is a fact which should have been asserted before the Tribunal and it was contended that as the Tribunal in its order rightly observed, no evidence worth the name was even produced and even an affidavit had not been filed to say that the experience of working itself was a professional qualification by application of which he earned the salary that he was drawing from the firm. It is contended by the learned counsel that for attracting the proviso and getting the salary exempted, it was necessary to establish facts and as nothing has been placed before the Tribunal, no question of law arises. It was contended that in the earlier year even if the husband of the assesses was in service, the question of Section 64 did not arise as the assessee was not a partner of the firm, but when the assessee becomes a partner of the firm, Section 64 in terms applies and as Section 64 in terms applies, it is for the assessee to establish that the income earned by the spouse of the assessee will fall within the ambit of the proviso to Clause (ii) of Sub-section (1) of Section 64. Section 64 of the Income-tax Act reads :
'64. (1) In computing the total income of any individual, there shall be included all such income as arises directly or indirectly--.......
(ii) to the spouse of such individual by way of salary, commission, fees or any other form of remuneration whether in cash or in kind from a concern in which such individual has a substantial interest: Provided that nothing in this clause shall apply in relation to any income arising to the spouse where the spouse possesses technical or professional qualifications and the income is solely attributable to the application of his or her technical or professional knowledge and experience.'
6. It is plain that Clause (ii) of this section provides that the income of the spouse by way of salary or commission or fees or any other form of remuneration from a concern in which the assessee has substantial interest will be added up to the income of the assessee except as has been provided in the proviso and the proviso requires that the income arising to the spouse if it is attributable to the application of his or her professional or technical knowledge or experience, then alone it could be exempted. It is, therefore, plain that before the authorities, the assessee or her husband (spouse) should have placed facts to demonstrate that the income which he has by way of salary is solely attributable to the application of his technical or professional knowledge and experience and it is in this view, it appears, that the Tribunal observed that no material was placed before the authorities to come to this conclusion. It is not in dispute that no material was placed, but what the learned counsel for the assessee attempted to contend was that it could be inferred from the fact that the husband of the assessee was in the service of this firm in the earlier year when the assessee was not a partner but the question of his being in service in the earlier year is of no consequence as in that year Section 64 did not apply and when Section 64 is applicable, it was for the assessee to produce material to bring the case within the ambit of the proviso to Section 64(1)(ii) quoted above and, in the absence of material produced before the Tribunal, the conclusion that the Tribunal reached is a mere conclusion of fact and no question of law arises. In this view of the matter, therefore, in our opinion, it is not necessary for us to answer the question as no question of law arises.
7. The reference is, therefore, rejected. In the circumstances of the case, parties are directed to bear their own costs.