K.C.AGRAWAL, J. - (1.) THE question of law referred for our opinion in this case is whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the income from half share of the house property named 'Kiran Kunj" should not be included in the income of the Assessee under s. 64 of the IT Act, 1961.
(2.) THE relevant facts are these. The Assessee is an individual and the proceedings involved in the present case are with respect to the asst. yrs. 1967-68 to 1970-71. The Assessee filed returns in respect of these years and disclosed that half of the income from house property known as "Kiran Kunj" belonged to her whereas the remaining half income of the same was that of her minor sons, Aditya Mohan Nigam and Rajendra Kumar Nigam. The ITO accepted the claim of the Assessee. Subsequently, the CIT found that the order passed by the ITO was erroneous and prejudicial to the interest of the Revenue. He accordingly set aside the order of the ITO and directed him to include the other half income of the two minor sons with that of the Assessee. Against the aforesaid order of the CIT, the Assessee preferred an appeal before the Tribunal. The Tribunal following its earlier decision given for the asst. yr. 1964-65, which was also followed in the asst. yrs. 1965-66 and 1966-67, held that the Assessee had transferred half of her share of the property "Kiran Kunj' to her minor sons for adequate consideration and, therefore, the provisions of S. 64 were not attracted. The Department thereafter referred the above question for our opinion. It may be mentioned that for the asst. yrs. 1964-65 to 1966-67 this very question had arisen between the parties and a reference was made to this Court. The said reference is ITR No. 340 of 1972. It came up for decision before a Division Bench of this Court. As there was a difference of opinion amongst the two Judges deciding the aforesaid reference, the matter was referred to a third Judge. The third Judge agreed with K.C. Agrawal, J. (Judgment reported in Addl CIT vs. Laxmi Narayan, 1978 CTR (All) 1 Editor) and found that the transfer made by Smt. Laxmi Nigam was not for adequate consideration. Consequent upon the view taken by the third Judge, the full Bench held that the question referred be answered against the Assessee and in favour of the Department. The said decision is binding on us as the question involved in the present case is the same.
(3.) WE accordingly answer the question in the negative in favour of the Department and against the Assessee. The Department will be entitled to costs of this reference which we assess at Rs. 200.;