GANJI KRISHNA RAO v. INCOME TAX OFFICER
[Citation -1985-LL-0722-1]

Citation 1985-LL-0722-1
Appellant Name GANJI KRISHNA RAO
Respondent Name INCOME TAX OFFICER
Court ITAT
Relevant Act Income-tax
Date of Order 22/07/1985
Assessment Year 1981-82
Judgment View Judgment
Keyword Tags benefits of partnership • hindu undivided family • higher rate of tax • assessable income • partial partition • income of minor • minor child • karta
Bot Summary: In the assessment of the karta's wife, the income arising to the separated minor son has been included under section 64 of the Income-tax Act, 1961. In deciding the rates to be applied in assessing the assessee-HUF the ITO was of opinion that since one of the members, i.e., karta's wife also has assessable income after the inclusion of the minor son's income under section 64, the higher rate of tax will be applicable. Since the income of the wife of the karta without the inclusion of the income of the minor son is below Rs. 12,000, it is submitted that the provisions of sub-paragraph II of Part I of the First Schedule will not be applicable. Now, the total income referred to is the total income computed as per the 1961 Act. Now in computing the total income, section 64 very clearly states that income of minor children is includible. The definition of total income given in section 2(45) of the 1961 Act means the total amount of income computed in the manner laid down in this Act which includes section 64. There can be no manner of doubt that the total income referred to in sub-paragraph II of Part I of the First Schedule includes the income under section 64 also.


This is appeal by HUF against action of ITO assessing it at higher rate applicable to HUFs where one of members has taxable income. 2. assessee-family consists of karta Shri Krishna Rao, his wife and minor daughter. karta has two other children who are also minors, but there had been partial partition between karta and two minor children. One of minor children who is now separated is partner in firm in which karta's wife is also partner. In assessment of karta's wife, income arising to separated minor son has been included under section 64 of Income-tax Act, 1961 ('the 1961 Act'). 3. In deciding rates to be applied in assessing assessee-HUF ITO was of opinion that since one of members, i.e., karta's wife also has assessable income after inclusion of minor son's income under section 64, higher rate of tax will be applicable. This was confirmed by Commissioner (Appeals). 4. assessee is on further appeal before us. It was submitted by Shri Anandkumar that for purpose of sub-paragraph II of part I of First Schedule to Finance Act, 1981, member of HUF should have separate and independent income of his own. Only then will higher rates prescribed in sub-paragraph II of Part I of First Schedule will be applicable. In support of this contention, he referred to speech of Finance Minister while introducing Finance Bill, 1981. He also submitted that as per Supreme Court decision in K. P. Varghese v. ITO [1981] 131 ITR 597 reference could be made to speech in order to understand purpose for which provision was enacted. He also submitted that if there is any doubt, that doubt has to be resolved in favour of assessee. 5. We are unable to accept his submission. Sub-paragraph II of Part I of First Schedule referred to reads as under: "In case of every Hindu undivided family which at any time during previous year has at least one member whose total income of previous year relevant to assessment year commenting on 1st day of April, 1981, exceeds Rs. 12,000." What we have to see is whether any member of HUF has total income which exceeds Rs. 12,000. It is not disputed that karta's wife is member of HUF. What is submitted is that she does not have income exceeding Rs. 12,000. Her own income is only Rs. 5,730. share given to minor son admitted to benefits of partnership amounted to Rs. 1,03,315. By addition of this amount under section 64, income has exceeded Rs. 12,000. Since income of wife of karta without inclusion of income of minor son is below Rs. 12,000, it is submitted that provisions of sub-paragraph II of Part I of First Schedule will not be applicable. 6. So real issue is what is meant by total income of previous year which expression is found in sub-paragraph II of Part I of First Schedule. Now, total income referred to is total income computed as per 1961 Act. It will not be referring to any total income. Now in computing total income, section 64 very clearly states that income of minor children is includible. definition of total income given in section 2(45) of 1961 Act means total amount of income computed in manner laid down in this Act which includes section 64. Therefore, there can be no manner of doubt that total income referred to in sub-paragraph II of Part I of First Schedule includes income under section 64 also. 7. We can derive support for this proposition from decision of Andhra Pradesh High Court in case of CIT v. G. Gopal Rao 1985 Tax LR 273. They have quoted Supreme Court decision in case of CIT v. Smt. P. K. Kochammu Amma [1980] 125 ITR 624 where it is stated by their Lordships: "... total income of assessee chargeable to tax would include amounts representing shares of spouse and minor child in profits of partnership ..." (p. 278) Again, Andhra Pradesh High Court has pointed out: "... In first place, income although derived by his minor children is held to be 'his income' and obligation is imposed on assessee under section 139(1) of Act to declare such income in return filed by him ..." (p. 279) It will be apparent from above that there is no manner of difficulty at all in holding that total income for purpose of Finance Act also includes income under section 64. Now, Shri Anandkumar had referred to Finance Minister's speech. No doubt, Finance Minister's speech can be referred to where there is some ambiguity in interpreting particular provision of section. Where there is no such ambiguity and where term to be construed as defined by Act itself, there is no need for going into Finance Minister's speech. Further, since there is no difficulty in interpretation, there is no question of arriving at interpretation which leaves assessee with lesser burden. 8. In result, appeal stands dismissed. *** GANJI KRISHNA RAO v. INCOME TAX OFFICER
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