COMMISSIONER OF INCOME TAX Vs. NELLAIAPPAN V

JUDGEMENT

(1.) AT the instance of the Department, the following common question of law is referred to us for our opinion relating to the assessment years 1972-73 to 1974-75:

(2.) THESE reference applications relate to the assessment years 1972-73 to 1974-75. The assessee is an individual. He was a partner in the firm, Rm. K. V. Textiles, representing the Hindu undivided family, consisting of himself and his wife. In making the assessment, the Income-tax Officer included the share income of the assessee's minor children, Viswanathan, Loganayaki and Seethalakshmi, from the firm for the respective assessment years under section 64(1)(ii) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"). The assessee preferred an appeal before the Appellate Assistant Commissioner, who directed the exclusion of such share income relying on the earlier decision of the Tribunal on this point and also of the decision of the Andhra Pradesh High Court in CIT v. Sanka Sankaraiah [1978] 113 ITR 313. As against this order, the Revenue preferred appeals before the Appellate Tribunal. The Appellate Tribunal pointed out that the decision of the Andhra Pradesh High Court in Sanka Sankaraiah's case [1978] 113 ITR 313 was followed by the Gujarat High Court in the decision in Dinubhai Ishvarlal Patel [1979] 118 ITR 122. The Tribunal has also noted that the Allahabad High Court has taken a different view in Madho Prasad, Pilibhit v. CIT [1978] 112 ITR 492. Following the above-mentioned two decisions, the Tribunal confirmed the order of the Appellate Assistant Commissioner in respect of the assessment years in question.