appeal is filed out of time by one day. Considering reasons stated in affidavit, delay is condoned vide order sheet entry dated 6-6-1984. 2. This appeal is by assessee and relates to assessment year 1979-80. 3. In case of assessee, Shri Ramanujam, assessed in status of n individual share income of his minor son from Srivastava Agencies, Vijayawada, was included. share income so included was Rs. 6,407. This assessment dated 28-2-1982 was made by ITO, A-Ward. 4. Earlier for assessment year 1979-80 itself, in assessment of wife, which was done by ITO, E-Ward, share income of minor son was included. This share income has been shown by her and was assessed under provisions of section 143(1) of Income-tax Act, 1961 ('the Act'). 5. assessee appealed to AAC and it was contended that since share income of minor had been taxed in hands of assessee's wife and such assessment was not disputed by her for year under consideration, income of minor should have been taxed in hands of wife only. AAC held that inasmuch as assessee was having larger income compared to income of wife, according to provisions of section 64 of Act, income of minor was to be taxed in hands of assessee and not in hands of assessee's wife. Therefore, he held that no interference was called for and appeal was dismissed. 6. Against this decision, assessee is in appeal before us. It is urged that on completion of assessment in case of wife, ad hoc finality had been reached, regarding inclusion of share income and such ad hoc finality in assessment made by ITO, E-Ward could not be disturbed by ITO, A-Ward, when he came to make assessment of assessee's husband. Also it was submitted that neither of ITOs gave opportunity to either assessee or his wife as to why earlier action of including share income of minor in hands of wife should be changed. Therefore, it was submitted that in any view of matter share income included would have to be excluded. In support of contention, learned counsel relied on decision of Gujarat High Court in case of Mrs. J.D. Karaka v. CIT [IT Reference No. 102 of 1974, read with IT Reference No. 22 of 1975 dated 19-1- 1976] reported in 1976 Taxation 45(3)-186. 7. learned departmental representative, on other hand, submitted that there was constructive notice to assessee that share income was to b e included in his hands and that was sufficient. learned departmental representative relied on decision of Gujarat High Court in CIT v. Sumanthbhai C. Munshaw [1981] 128 ITR 142 for proposition that where point of defence had been abandoned by party at crucial stage, he could not be allowed to take up such objection later. Another contention put forth was that any objection which assessee may have to offer against inclusion of share income in his hands could be considered by appellate authority, though it was not considered by ITO and in this regard reliance was placed on decision of Kerala High Court in V. Subramonia Iyer v. CIT [1978] 113 ITR 685. It was also submitted with reference to decision of Supreme Court in Grindlays Bank Ltd. v. ITO [1980] 122 ITR 55 that assessee should not have undue advantage by resorting to technical objections. For all these reasons, it was contended that orders of authorities below should be upheld. 8. We have considered rival submissions. provisions of section 64(1)(iii) and Explanation 1 thereto are as under: " (1) In computing total income of any individual, there shall be included all such income as arises directly or indirectly--- (iii) to minor child of such individual from admission of minor to benefits of partnership in firm; Explanation 1: For purposes of clause (i) and clause (ii), individual, in computing whose total income income referred to in that clause is to be included, shall be husband or wife whose total income (excluding income referred to in that clause) is greater; and, for purposes of clause (iii), income of minor child from partnership shall be included in income of that parent whose total income (excluding income referred to in that clause) is greater; and where any such income is once included in total income of either spouse or parent, any such income arising in any succeeding year shall not be included in total income of other spouse or parent, unless Income-tax Officer is satisfied, after giving that spouse or parent opportunity of being heard, that it is necessary so to do. " aforesaid provisions have been subject of elaborate examination b y Gujarat High Court in case of Mrs. J.D. Karaka, relied on by learned counsel for assessee. High Court has laid down that as far as inclusion for first time of share income is concerned, whether in case of husband or wife, there is ad hoc finality reached of such inclusion by ITO, who so includes share income in point of time earlier, i.e. ad hoc finality is reached on occasion earlier in point of time when one ITO decides to include share income either in case of husband or in case of wife. Such ad hoc finality could be disturbed only by way of appeal, revision, etc., for same year. Otherwise, according to Court, if ITO making assessment next in point of time is allowed to make change, he will be sitting in judgment over order of earlier ITO which he would not be competent to do. second point decided by Court is that once share income is included in hands of husband or wife, as case may be, if in subsequent year such share income is to be included in hands of other spouse, then opportunity required by Explanation 1 has to be given by ITO who had assessed spouse in whose hands share income had earlier been included to other spouse in whose hands share income is proposed to be included. scheme of Explanation, thus, is that ITO, who has first decided that share income of minor is to be included in hands of husband or wife, as case may be, has to himself unsettle in subsequent year, what has been settled in earlier year and he is only ITO who is contemplated by first part of Explanation and he alone has to give notice to other spouse. In present case, therefore, action of ITO, A-Ward, who made assessment on 28-2-1982, suffers from two infirmities. first infirmity is that for this very year, ITO, E-Ward, already included share income of minor in hands of wife. Therefore, for this year ad hoc finality had been reached and such finality could be disturbed only by way of appeal or revision, etc., and not by ITO, A-Ward, acting on subsequent date in making assessment of husband. Therefore, on this score, inclusion would have to be excluded. This is ratio of judgment of Gujarat High Court in Mrs. J.D. Karaka's case. Even on point of notice which of course does not apply since change had been proposed for same year, notice should have been given by ITO assessing wife of assessee. Such notice has not been given because he alone could unsettle his decision. This, of course, would have been position if change had been proposed in subsequent year which is not case here. In any view of matter, assessee, following ratio of judgment of Gujarat High Court in case of Mrs. J.D. Karaka, has to succeed and income of minor, which has been aggregated under section 64, would have to be excluded. 9. aforesaid discussion shows that specific notice has to be given by t h e ITO who first made assessment either of husband or wife including therein share income. question of any constructive notice having been given to assessee in present case, as sought to be urged by learned departmental representative, therefore, does not, in any view of matter, arise. We are also unable to agree with learned departmental representative that defence now put forth was one which was abandoned at any earlier stage by assessee. Therefore, nothing precludes assessee from canvassing such objection before us. further contention that any objection assessee may have to offer could be considered by appellate authority, though it was not considered by ITO, does not help revenue in present case because ad hoc finality had been reached of order of ITO when ITO assessing wife had included earlier in point of time share income of minor for this very assessment year in wife's assessment. It was only that assessment, which could be modified in appeal, revision, etc., and not assessment of appellant-assessee. objection taken by assessee cannot also be held to be purely technical. objection is one with reference to express statutory provisions and one in relation to rights conferred by statute on assessee. result is, appeal is allowed. result is, appeal is allowed. *** R. RAMANUJAM v. INCOME TAX OFFICER