Commissioner of Income Tax vs A. Vairaprakasam Sivakast

R. Jayasimha Babu, J.—The substance of the question referred to us at the instance of the Revenue revolves round the meaning of the word

''necessary'' found in Expln. 1 to s. 64 of the IT Act-whether it is to be construed liberally as contended by the Revenue or narrowly.

Explanation 1 to s. 64 of the Act reads as under

For the purpose of cl. (i), the individual in computing whose total income the income referred to in that clause is to be included, shall be the

husband or wife whose total income (excluding income referred to in that clause) is greater; and, for the purpose of cl. (iii), the income of the minor

child from the partnership shall be included in the income of that parent whose total income (excluding the income referred to in that clause) is

greater; and where any such income is once included in the total income of either spouse or parent, any such income arising in any succeeding year

shall not be included in the total income of the other spouse or parent unless the ITO is satisfied, after giving that spouse or parent an opportunity

of being heard, that it is necessary so to do.

Sec. 64 of the Act deals with the circumstances in which the income of spouse or minor child is to be included in the income of the individual

assessee who the other spouse or the parent of the minor. Explanation 1 provides that the general rule is that the income of the spouse or the minor

child should be included in the income of that spouse or parent whose income is greater. This is followed by a mandate that where the income is so

included in that one of the spouses or one of the parents of the minor ""any such income arising in any succeeding year shall not be included in the

total income of the other spouse or parent"". This is followed by the Explanation that if the ITO is satisfied after giving that spouse or parent an

opportunity of being heard, and forms the opinion that ""it is necessary to do so, he may include the income of the concerned spouse or minor in the

income of the other spouse or parent.

The scheme of the Explanation would indicate that the general rule is that the spouse or the parent who has greater income is the one in whose

assessment the income of the other spouse or the minor should be included, and once so included, it shall continue to be included in the income of

that spouse or parent in succeeding years until and unless the ITO, after giving the opportunity to the affected parties, forms the opinion that it is

necessary to include it in the income of the other spouse or parent.

It is significant that the terminology used in this Explanation is very emphatic. There is no room for any ambiguity in the provision. The mandate

of the legislature is that once included in the income of either spouse or parents, it ''shall'' continue to be included in the assessment of that spouse

or parent only. That situation can be altered only when the ITO, after giving affected parties appropriate opportunity holds that it is ''necessary'' to

do so.

The dictionary meaning of the word ''necessary'' is something indispensable to some purpose. The word is defined in the Webster''s Dictionary

as unavoidable, inevitable, indispensable, mandatory, inherent in the situation and undeniable.

The various shades of the meaning of the word ''necessary'' would indicate that a thing can be regarded as necessary only when there is an

element in the situation which compels a particular thing to be regarded as being essential or unavoidable.

The view taken by the Tribunal in this case that the mere fact that in a particular assessment year the income of the other parent was higher than

that of the parent in whose assessment, the income of the minor had been included in the earlier assessment year, could not be regarded as an

event which would inevitably lead to the conclusion that it was necessary to change the mode of assessment of the income of the parent within

which the minor''s income had been included in the earlier years, and including the minor''s income in the income of the other parent in the

assessment year in issue we do not find any error in that view of the Tribunal.

8A. The legislative intention as expressed in Expln. 1 to s. 64 of the Act is that once included in the income of a parent, it is that parent''s

assessment alone which would continue to include the income of the minor. This mandate of the legislature has been given notwithstanding the

recognition by the legislature that it is in the interest of the Revenue to include the minor''s income in the income of that parent whose income is

higher than the income of the other parent. Nothing would have been easier than to lay down that the minor''s income shall always be included in

the income of that parent whose income is higher. That, however, is not the scheme of the Explanation. The ITO by choosing to label his action as

being ''necessary'' cannot defeat the legislative intent and arrogate to himself powers which have not been conferred on him by the legislative

provision. Before the change can be regarded as ''necessary'' there should be some compelling circumstance apart from the benefit to the Revenue

arising from the inclusion in the income of the assessee spouse or parent whose income is higher in the assessment year.

The question referred to us at the instance of the Revenue, which arises out of the assessment of one of the parents of the minor for the asst. yrs.

1977-78 and 1978-79 as to whether the Tribunal was correct in law in holding that once the share income of the minor child is included in the total

income of either of the partners (sic-parents) for one assessment year which should continue to be added as a total income of the said parent in

subsequent year as well, notwithstanding the Expln. to s. 64 of the IT Act, in the circumstances of the case, is in the affirmative, against the

Revenue and in favour of the assessee.

The assessee shall be entitled to costs in the sum of Rs. 1,500 (Rs. One thousand and five hundred) only.