Per Shri C. Kochunni Nair, Judicial Member - These three appeals, relating to three different assessees are, because the points for our decision are common, consolidated for disposal. Out of the three appeals one is by the assessee for the assessment year 1977-78 and the other two by the department for the assessment years 1978-79 and 1979-80. All the three assessees are HUFs and resident in India. All of them have income from Malaysia. These and other similar assessees contended before the
ITO that Malaysian income is not includible in the total income in India because of the Agreement for Avoidance of Double Taxation between India and Malaysia issued by notification dated 1-4-1977—[1977] 107 ITR (St.) 36. The ITO held that it is taxable in India subject to relief of double taxation. But the Tribunal in various other cases had uniformly held the view that it is not includible in total income of taxable in India. However, a conflict arose in the Tribunal as to whether such Malaysian income is includible for rate purpose or not. That is how these appeals came to be heard by a Special Bench.

2. In the appeal of the assessee for the assessment year 1977-78, the assessee had busin