JAIPUR BENCH M. G. TOSHNIWAL v. INCOME TAX OFFICER December 12, 1984 JUDGMENT Order A. KALYANASUNDARAM, A. M.: appeal is by assessee and only ground is regarding clubbing salary of Rs. 11,218 received by assessee's wife by virtue of employment with M/s Toshniwal Industries (P) Ltd. For assessee Mr. Dani submitted that assessee as well as his wife were employed by M/s Toshniwal Industries (P) Ltd., Ajmer and assessee's wife science graduate was in employment of company since 1972. company manufactures scientific instruments. company is family concern in which assessee's wife is member. In hands of company salary paid to wife has been allowed in full. Mr. Dani submitted that AAC in para 2 had observed that salary of Rs. 11,218 was paid assessee to his wife. This according to Mr. Dani, is wrong fact. It was not department's case that salary was paid by assessee. He drew out attention to ITO's order wherein he had only mentioned that salary income received by assessee's wife is included under s. 64(1)(ii) of IT Act, 1961. Mr. Dani submitted that assessee also received salary from same firm. Mr. Dani also submitted that assessee looks after various activities of concern including manufacturing process and other matter related to office. assessee being graduate and that two in science is very much qualified to attend to various manufacturing process relating to scientific instruments. assessee, therefore, said possess technical qualification as far as employment is concerned. Mr. Dani thereafter submitted Tribunal's Judgment of Madras, Hyderabad and Ahmedabad, etc., where qualification, technical expertise and professional qualities have been examined. Relying on these judgment, he submitted that inclusion of salary paid to wife by M/s Toshniwal Industries (P) Ltd. is wrong. Mr. Saxena for department relied on orders of authorities below. We have heard parties and have considered submission made by then. reading of ITO's order shows that inclusion of assessee's wife's salary in hands of assessee had been made as was done in earlier years. It was submitted during course of arguments by Mr. Dani that on set of facts salary of wife was included in hands of husband in earlier two years against which assessee did not prefer any appeal. He also submitted that nothing prevented assessee after realising what fact is to prefer appeal for subsequent year. It is also clear that salary was not paid by assessee to his wife. it is also accepted fact that assessee and his wife received salary by virtue of their employment in concern which is their family concern. by applying s. 64(1)(ii) it seems apparent that assessee has substantial interest in concern. various judgments of tribunal filed by assessee indicate that s. 64(1)(ii) cannot apply to case where assessee's spouse has technical qualification. It also has been held that experience of spouse would also amount to technical or professional qualification. Applying this logic to instant case we find that qualification as science graduate is good qualification which could be sufficient enough for carrying out supervisory work and other administrative work relating to manufacture of scientific instrument. We, therefore, hold that salary paid to wife of assessee cannot be clubbed with hands of assessee. addition of Rs. 11,213 is, therefore, deleted. In result, assessee's appeal is fully allowed. *** M. G. TOSHNIWAL v. INCOME TAX OFFICER