P L D 1969 Dacca 910 (PLP)

A. S. CHOWDHURY, J.‑This is a reference under section 66 (2) of the Income‑tax Act (hereinafter called the Act) by the Income -Tax Appellate Tribunal, Dacca Bench, Dacca for our opinion and the question referred to is as follows: "Whether on the facts and circumstances of the case and on a true construction of the provisions of section 16 (3) (a) (ii) of the Income‑tax Act, 1922, the income of the minor children of the assessee is liable to be included in her total income ?" The answer to the aforesaid question must be in the nega tive. In this case a partnership firm was brought into existence consisting of Mst. Akbari Begum and some of her minor daugh ters and sons and also a major son and a major daughter. The contention of the assessee has been that the income of the minor children cannot be included in the income of Mst. Akbari Begum. That contention did not find favour with the Income‑tax authorities including the Tribunal. I should now read material part of section 16 (3) of the Income‑tax Act. "16(3). In computing the total income of any individual for the purpose of assessment, there shall be included: ‑ (a) so much of the income of a wife or minor child of such individual as arises directly or indirectly :‑ (i) from the membership of the wife in a firm of which her husband is a partner ; or (ii) from the admission of the minor to the benefits of partnership in a firm of which such individual is a partner ; or (iii) from assets transferred directly or indirectly to the wife by the husband otherwise than for adequate consideration or in connection with an agreement of live apart ; or (iv) from assets transferred directly or indirectly to the minor child, not being a married daughter, by such individual otherwise than for adequate consideration ; and (b) so much of the income of any person or association of persons as arises from assets transferred otherwise than for adequate consideration to the person or association by such individual for the benefit of his wife or a minor child pr both." It has been held by the Supreme Court that the word `individual' as it occurs in subsection (3) of section 16 has a restricted meaning in this section the individual must be one who can have a wife. This view supports the contention of the assessee that the income of minor children cannot be included in the income of a female individual. This law was laid down by the Supreme Court in the case of Commissioner of Income‑tax, Karachi v. Mst. Khatija Begum (P L D 1965 S C 472). In that case it was observed by the Supreme Court. "It is thus clear that the words `any individual' in sec tion 16 (3) has been used in a much restricted sense in sense than the word `individual' in section

3. Furthermore, the purpose of the two sections is so different that it cannot be presumed that the word `individual' is used in section 3 in the same sense which it bears in section 16 (3)." The Supreme Court of India was also of the same view in the case of Commissioner of Income‑tax, Madhya Pradesh and Bhopal v. Sodra Devi ((1957) 32 I T R 615). As a result of a decision of our Supreme Court the interpretation given in the case of Mrs. Hamidi Begum v. Commissioner of Income‑tax, East Pakistan (14 P L R 1964 Dacca 381) stands overruled. In accordance with the principle laid down by the Supreme Court in the case of Commissioner of Income‑tax, Karachi v. Mst. Khatija Begum referred to above, a Division Bench of this Court consisting of Murshed, C. J. and Maksum‑ul‑Hakim, J., also observed that the word `individual' occurring in section 16 (3) means a male individual. Murshed, C. J., delivering judgment of the Court in the case of Bai Zebeda and others v. The Commissioner of Income‑tax (unreported Reference Case No. 9 of 1962, decided on 2nd August 1966) observed: "that the true import of the expression, "individual" has to be ascertained from the meaning which must be given to the expression with reference to the opening words of subsec tion (3) of section 16 which runs thus: `(3) In computing the total income of any individual for the purpose of assessment there shall be included . . . . . . '." In view of the decision of the Supreme Court of Pakistan, in, Khatija Begum's case the word "Individual" in subsection (3) of section 16 must mean an individual who is capable of having a wife. The expression "such individual" occurring in clause (iv) of subsec tion (3) of section 16 must also have the same meaning for the words "such individual" refer to the word `individual' occur ring in subsection (3). It therefore means a male individual. The assessee being a female individual, she does not come within the expression "individual" occurring in subsection (3) A of section 16 of the Act. We, therefore, answer the question) referred to us in the negative and hold that the word `individual' occurring in section 16(3) (a) (iv) of the Income‑tax Act connotes only a male and not a female individual. The question came to be considered also in the case of Bai Zainab Ahmed, Chittagong v. The Commissioner of Income‑tax, Chittagong (unreported Reference Case No. 14 of 1968) by a Division Bench of this Court with which one of us was a party. That case was decided on 7th May 1968. In that case it was decided on 7th May 1968. In that case it was observed: "The law is, therefore, clear that on a true construction of the provisions of section 16 (3) (a) (iv) of the Income‑tax Act as it stood before the amendment made by section 6 of the Act V of 1965, the income of the minor children of the assessee applicant is not liable to be included in her total income and we, therefore, answer the question in the negative." For the reasons stated above, as we have already indicated at the out set, the question is answered in the negative. The parties are left to bear their own costs. NURUL ISLAM, J.‑I agree. Reference answered in the negative.