ISMAIL J.

The Income-tax Appellate Tribunal, Madras Bench, under section 256(1) of the Income-tax Act, 1961, has referred the following question for the opinion of this court :

"Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the shares of income of the minor children admitted to the benefits of partnership in which the assessee, a widow, was a partner, are includible in her total income under the provisions of section 64 ?" *

One S. Viswanathan, who was carrying on business as proprietor of the Central Art Press, died on January 20, 1960. He was survived by his mother, his widow and a minor son, one major daughter and three unmarried minor daughters. These persons, under the Hindu Succession Act, 1956, were entitled to succeed to the estate of the deceased Viswanathan, each inheriting a one-seventh share. On February 23, 1960, a partnership came into existence between the widow of Viswanathan and his major daughter, Kamala, and the three minor daughters and the minor son were admitted to the benefits of that partnership. The mother of Viswanathan had relinquished her interest in favour of her grandson, i.e., the minor son of viswanthan, and, therefore, his share became two-sevenths as against the one-seventh of the others. We are concerned in these cases with the correctness or otherwise of the inclusion of the share of the three three minor daughters and one minor son in the profits of the firm in the assessment of the widow of Viswanathan as the mother of the said four minors. The assessing authorities as well as the Tribunal held that under section 64 of the Income-tax Act, 1961, the income of those minors was includible in the income of the mother, viz., the widow of Viswanathan, and had to be assessed in her hands as such. It is the correctness of this conclusion that is challenged in the form of the question referred to above in the present reference. T.C. No. 8 of 1971 and T.C. No. 369 of 1975 are at the instance of Mrs. viswanathan, the former case (T.C. No. 8/1971) covering assessment year 1962-63 and 1963-64 and the latter case (T.C. No. 369/1975) covering the assessment year 1964-65. It may be pointed out that before the assessment year 1964-65, the son of Viswanathan had become a major and, therefore, for the assessment year 1964-65, the income of the three minor daughters alone has been included in the income of the mother. It is in these tax cases, the question referred to above arises. The other reference in T.Cs. Nos. 2, 4, 7, 15, 64, 80, 91 and 93 of 1971 have been made at the instance of the department. What happened in this case was that the officers of the department, while including the income of the minors in the income of the mother and assessing her in respect of the entire income, simultaneously by way of protective assessment, assessed the respective income of the minors in their hands. However, when the Income-tax Appellate Tribunal finally upheld the action of the authorities in including the income of the minors in the income of the mother under section 64 , it had to set aside the protective assessments made against the minors themselves in respect of their shares of income with reference to the three years in question and, therefore, the assessments were set aside. It is in respect of this part of the order of the Tribunal, the tax cases referred to above have come before this court at the instance of the department, the question raised there being :

"Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in deleting the share income of the assessee from the firm of Messrs. Central Art Press for the assessment years 1962-63 and 1963-64 ?" *

It is not necessary to refer to the question in each one of them because they are more or less similar except for the difference in the year of assessment and the name of the minor. It is the common case of both sides before us that if we decide Tax C