COMMISSIONER OF INCOME TAX Vs. DATTA V GAITONDE

JUDGEMENT

(1.) BY this reference under S. 256(1) of the IT Act, 1961, the Tribunal has referred the following question of law to this Court for opinion, at the instance of the Revenue :

(2.) THE assessee is a practising doctor at Mapusa. He is also a partner in Mapusa Polyclinic. He follows the accounting year ending on 31st March. The assessee declared 50 per cent of the income from salary/profession/house property, business and other sources in the individual return filed as the spouses were governed by the Portuguese Civil Code according to which husband and wife have equal interest in the assets and communion of property which comes into existence on the marriage unless there is an ante nuptial contract to the contrary. The AO assessed that income from salary and profession in the hands of the individual by holding that it is earned out of personal exertion. He rejected the assessee's claim that these items of income have to be assessed in the hands of the husband and wife in the ratio of 50:50. On appeal, the CIT(A) accepted the assessee's claim holding that since the assessee is governed by the Portuguese Civil Code, the income from salary and profession also formed an integral part of the communion and has to be assessed in the hands of each of the spouses in the ratio of 50:50. The Tribunal following its own order in the assessee's case confirmed the decision of the CIT(A). It is against this background that the present reference is made to this Court.

(3.) HOWEVER , since in the present matter, the statement of the case is not clear as to whether the income in this case is income from profession or income from salary, the matter is remitted to the Tribunal to decide afresh in accordance with the provisions contained in S. 5A of the IT Act, 1961. The reference is disposed of accordingly with no order as to costs.