COMMISSIONER OF INCOME TAX Vs. ANAND C L

JUDGEMENT

(1.) The question for consideration in I.T.R. 310 of 1985 is when the kartha of a Hindu Undivided, Family 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. The same question also arise for consideration in ITR Nos. 309 and 311 of 1985 as well. But in those cases the original assessments made on the assessee for the assessment years 1971-72 and 1974-75 were reopened under S.147(a) of the Income Tax Act on the ground that the share income of the wife from the partnership in which the assessee was a partner representing the H.U.F. has not been disclosed. The completed assessments of the same assessee for the assessment years 1970-71 and 1972-73 were also reopened on an earlier occasion under S.147(a) of the Act on the ground that the assessee had not disclosed the share income of his wife from the partnership business in which the assessee was a partner representing the H.U.F. and assessments were made including the share income of the wife in his individual assessments applying the provisions for aggregation under S.64(1) of the Income Tax Act. Those assessments for the years 1970-71 and 1972-73 were the subject matter of our decision in I.T.R. Nos. 4 of 1983 and 366 of 1982 respectively in which we held that the question whether the share income of the wife derived from the partnership business in which her husband also is a partner representing the H.U.P. should be included in the computation of the total income of the husband is a debatable question of law and therefore failure to disclose such income will not give jurisdiction to the Income Tax Officer to reopen the assessment under S.147(a) of the Act. We held therein that the reopening of the assessment was invalid, relying upon the decisions of the Supreme Court reported in Calcutta Discount Co. v. I.T.O. 1961 (41) ITR 191 , I.T.O. v. Madani Engineering Works Ltd. 1979 (118) ITR 1 , Gemini Leather Stores v. I.T.O. 1975 (100) ITR 1 , C.I.T'. v. Hemachandra Kart and others 1970 (77) ITR 1 , C.I.T. v. Bhonji Lavji 1971 (79) ITR 1 and C.I.T. v. Burlop Dealers Ltd. 1971 (79) ITR 609 . As we held therein that the reopening of the assessments were invalid, it was not necessary to consider the other question whether the share income of the wife could be included in the individual assessment of the assessee.

(2.) The subject matter of the present income tax references relates to the same assessee for the assessment years 1971-72, 1973-74 and 1974-75. But, for the assessment years 1971-72 and 1974-75 the assessments already made were reopened on the ground that the assessee has not disclosed the share income of the wife. If the reopening was invalid the other question will not arise for consideration for these two years also. Therefore, following our decision in the case of the same assessee for the assessment years 1970-71 and 1972-73 in I.T.R. Nos. 4 of 1983 and 366 of 1982, we hold that the reopening of the assessments for the years 1971-72 and 1974-75 was invalid.

(3.) The questions of law arising out of the common order of the Tribunal, dated 16th August 1984 in I T A Nos. 776 to 778 (Coch) of 1982 relating to the assessment years 1971-72, 1973-74 and 1974-75 referred to us are: