KAMLABAI GUJRI Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS is a reference made by the Income-tax Appellate Tribunal to answer the following questions :

(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 64(1)(ii) 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 64(1)(ii). 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 64(1)(ii) 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.) 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 :