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Commissioner I.T. Lucknow v. Haseeba Khatoon, Moradabad - INCOME TAX REFERENCE No. 83 of 1986 [2005] RD-AH 1234 (4 May 2005)


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


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 question of law under section 256 (1) of the Income Tax Act, 1961, (hereinafter referred to as "the Act") for opinion of this Court.

"Whether on the facts and in the circumstances of the case, the Appellate Tribunal was justified in cancelling the order passed by the Commissioner u/s 263 and in holding that the income of the assessee's husband amounting to Rs.9,600 was not includible in her assessment under the provisions of sec. 64(1) (ii) of the income-tax Act, 1961?"

The present reference relates to the assessment year 1977-78.

Brief facts of the case are as follows:

The assessee respondents (hereinafter referred to as "Assessee'") was a partner of a firm named Anwar Kamal and Bros., Moradabad, in the asstt. Year 1977-78. The ITO had completed the assessment of the assessee by adopting the share income from the firm.

The CIT, Lucknow found that in the above named firm the assessee and her son were partners and that a sum of Rs.9,600 had been paid as salary to Sh.Atiqur Rehman, husband of the assessee. According to the Commissioner, the salary of Rs.9,600 was includible in the hands of the assessee under the provision of section 64 (1)(ii) of the Income-tax Act, 1961. According to him, Atiqur Rehman did not possess any technical or professional qualification for earning the salary income and, therefore the provisions of section 64(1)(ii) were applicable and that the assessee's case did not fall under the proviso appended underneath sec. 64(1)(iii). He, therefore, held that the order passed by the ITO was erroneous and prejudical to the interest of revenue and directed the ITO to reframe the assessment after including the amount of Rs.9,600 in the assessee's total income.

The assessee appeared against the order of the Commissioner and contended before the I.T.A.T. That the amount of Rs.9,600 was not in-cludible in its income as the provisions of sec. 64(1)(ii) did not apply to the facts and circumstances of the case. The Tribunal cancelled the order passed by the Commissioner for the same reasons as had been given while deciding ITA No.847/Del/82 in relation to the assessment of the assessee for the assessment year 1978-79.

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.




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