COMMISSIONER OF INCOME TAX Vs. DHARAMPAL RAM KUMAR

JUDGEMENT

(1.) This appeal is preferred against an order of the Bombay High court rejecting an application under section 256(2 of the Income-tax Act ("the Act") on the ground that the question raised herein is of mere academic interest. The question which was sought to be referred at the instance of the Revenue reads thus :

(2.) Sri Murthy, learned senior counsel for the Revenue, submits that the question sought to be raised by the Revenue is not concluded by the decision of this court in L. Hirday Narain V/s. ITO, 1970 78 ITR 26. According to him, it was a case where the income of the minor children was sought to be included in the assessment of a Hindu undivided family and not in the individual assessment of the karta. He also submits that this question has also not been gone into or decided on the merits by this court in COMMISSIONER OF INCOME TAX V/s. Harbhajan Lal, 1993 204 ITR 561. He points out that the decision in Harbhajan Lal's case, 1993 204 ITR 561, was in an appeal against an order dismissing an application under section 256(2) of the Act and that this court did not deem it appropriate in the facts and circumstances of the case to go into the merits of the case. He further points out that that was a case relating to the inclusion of minor's share income in the assessment of the father. He also submitted that Civil Nos. 5851-5855 of 1985 disposed of simultaneously did, no doubt, pertained to the inclusion of wife's income in the income of the husband, but it too was disposed of following the decision in Harbhajan Lal's case, 1995 204 ITR 561 (SC) and, therefore, not a decision on the merits. We are inclined to agree with Sri Murthy. We are of the opinion that the question sought to be raised herein ought to be examined on merits.

(3.) Accordingly, we allow this appeal and direct the Tribunal to state the aforesaid question for the opinion of the High court under section 256(2) of the Act.