1984 (9) TMI 8

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....earning of the income as per proviso to section 64(1)(ii) despite evidence that he was already under employment of the firm, prior to the joining of Smt. Kamlabai, assessee, as a partner and whether the salary paid of Rs. 4,800 is liable to be added in the income of the assessee ? " The facts stated in the reference are that the assessee is one of the partners of the firm, Gopikishan Ghisalal Gujri. It is stated that in this case, original assessment was completed by September 5, 1977, on a total income of Rs. 10,980. Subsequently, the Income-tax Officer came to know that the husband of the assessee was an employee in the firm, Gopikishan Ghisalal Gujri, and he received a salary of Rs. 4,800. Since the assessee is one of the partners in ....

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.... appeal held that it was for the assessee to produce evidence but no evidence worth the name was produced to show that the earning spouse possessed a technical or professional qualification and the income earned by him as salary is attributable to the application of his technical or professional knowledge or experience. It was further observed by the Tribunal that at least the assessee or her husband could have filed an affidavit to prove the aforesaid facts. The Tribunal also found that the Income-tax Officer also arrived at a conclusion that the assessee failed to prove that the earning spouse possessed any technical or professional qualification as required to be proved by the exception to section 64(1)(ii) of the Act and even after this....

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....as drawing from the firm. It is contended by the learned counsel that for attracting the proviso and getting the salary exempted, it was necessary to establish facts and as nothing has been placed before the Tribunal, no question of law arises. It was contended that in the earlier year even if the husband of the assessee was in service, the question of section 64 did not arise as the assessee was not a partner of the firm, but when the assessee becomes a partner of the firm, section 64 in terms applies and as section 64 in terms applies, it is for the assessee to establish that the income earned by the spouse of the assessee will fall within the ambit of the proviso to clause (ii) of sub-section (1) of section 64. Section 64 of the Incom....