C.I.T. LUCKNOW versus SMT. HASIBA KHATOON, MORADABAD

High Court of Judicature at Allahabad

Indian Supreme Court Cases / Judgements / Legislation

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C.I.T. Lucknow v. Smt. Hasiba Khatoon, Moradabad - INCOME TAX REFERENCE No. 84 of 1986 [2005] RD-AH 1232 (4 May 2005)

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.37

INCOME TAX REFERENCE NO.84 OF 1986

Commissioner of Income Tax, Lucknow. ....Applicant

Versus

Smt. Haseeba Khatoon, Moradabad.          ..Respondent

Hon'ble R.K. Agrawal, J.

Hon'ble Rajes Kumar, J.

The Income Tax Appellate Tribunal, New Delhi has referred to following questions of law under section 256 (1) of the Income Tax Act, 1961, (hereinafter referred to as "the Act") for opinion of this Court.

"1. Whether on the facts and in the circumstances of the case, M.Atiqur Rehman, the husband of the assessee possess any technical or professional knowledge and experience as not to include the income of the assessee's husband to the total income of the assessee u/s 64(1)(ii) of the I.T.Act, 1961 ?"

2. Whether Learned Tribunal was legally justified in confirming the AAC's order deleting addition of Rs.30,147/- on account of commission when the Tribunal has itself allowed Department's Reference Application u/s 256(1) for the Assessment Year 1978-79 on the same issue ?"

The present reference relates to the assessment year 1979-80.

Brief facts of the case are as follows:

The Income-tax Officer made an addition of Rs.30,147/- in the hands of the assessee u/s 64(1)(ii) on account of commission paid to the assessee's husband Atiqur Rehman by M/s Anwar Kamal & Bros. in which the assessee was a partner.

In appeal, the Appellate Assistant Commissioner, following the order dated 7.6.1983 of the Appellate Tribunal in the case of the assessee for the assessment year 1978-79 deleted the addition.

The department , being aggrieved, came up in appeal before the Appellate Tribunal. The Appellate Tribunal dismissed the Department's appeal in view of its earlier decision for the assessment year 1978-79 which had followed the order dated 4.10.1983 in ITA No.1953/Del/1982 for the assessment year 1977-78. In that year, the Appellate Tribunal had also referred to the Special Bench decision in the case of Dr.J.N.Mokashi 1 SOT 367.

We have decided the similar question in I.T.R. No.177 of 1984 arising from the ITA No.847/Del/82, which has been followed by the Tribunal in favour of the assessee and against the Revenue.

Respectfully following the decision of this Court in ITR No.177 of 1984 we answer the question referred to use in affirmative, i.e. In favour of the assessee and against the Revenue. There shall be no order as costs.

Dt.04.05.2005

R./

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