JUDGMENT - Bharucha J.-A point of some interest arises in this reference at the instance of the Revenue under Section 256(1) of the Income-tax Act. There has been a difference of opinion among some High Courts about it. The question that we are required to answer indicates the point: “Whether, on the facts and in the circumstances of the case, the share of profit received by the assesse's wife from the firm of-Importex Iniernational was includible in the total income of the assessee under Section 64(1) of the Income Tax Act, 1961 ?” 2. The assessee was a partner during the Assessment Years 1968-69 to 1970-71 in a partnership firm called Importex International. The other partners were the assessee's wife and brother-in-law. The assessee was partner as karta of his Hindu Undivided Family. 3. The I.T.O included the share of profits derived by his wife from the firm in the total income of the assessee under the provisions of Section 65(1) of the Act. The assessee preferred appeals to the Appellate Assistant Commissioner. He dismissed them. The assessee went up before the Income-tax Appellate Tribunal. The Tribunal upheld the assessee's contention that his wife's share of profits from the firm could not be included in his total income. It held that Section 64(1) had no application to the case. Section 64(1), in its opinion, concerned itself with the assessment of an individual. What was needed to be considered was whether the individual was a partner in his individual capacity or in his capacity as a karta. Section 64(1) applied only to an assessee who was a partner in an individual capacity. . 4. To appreciate the arguments it is necessary to reproduce Section 64(1)(i) and Explanation 1 to Section 64(1): “64. What was needed to be considered was whether the individual was a partner in his individual capacity or in his capacity as a karta. Section 64(1) applied only to an assessee who was a partner in an individual capacity. . 4. To appreciate the arguments it is necessary to reproduce Section 64(1)(i) and Explanation 1 to Section 64(1): “64. Income of individual to include income of spouse, minor child, etc.:- (1) In computing the total income of any individual, there shall be included all such income as arises directly or indirectly- (i) to the spouse of such individual from the membership of the spouse in a firm carrying on a business in which such individual is a partner; x x x x x x x x x Explanation 1:- For the purposes of clause (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 the income referred to in that clause) is greater; and, for the purposes of clause (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 Income-tax Officer is satisfied, after giving that spouse or parent an opportunity of being heard, that it is necessary so to do.” 5. It was contended by Mr. Dhanuka, learned counsel for the Revenue, that by reason of Section 64(1) the income derived by the assessee's wife from the firm was required to be added in computing the total income of the assessee. Mr. Dhanuka submitted that an H.U.F. could not be a partner in a firm as such. When a karta entered into a contract of partnership on behalf of his H.U.F., the partnership was between the individuals who formed it; neither the H.U.F. nor its members were partners. The karta was personally and individually a partner qua the other partners in the firm. When a karta entered into a contract of partnership on behalf of his H.U.F., the partnership was between the individuals who formed it; neither the H.U.F. nor its members were partners. The karta was personally and individually a partner qua the other partners in the firm. He was only accountable to his H.U.F. The expression 'individual' in Section 64 comprehended within it the case of a partnerhsip where the karta of an H.U.F. was a partner as the karta was liable to be considered only as an individual in so far as the firm was concerned. The object of Section 64 was to prevent evasion of tax and the Explanation was aimed at allowing the Revenue to tax at the higher rate in the contingencies contemplated. Mr. Dhanuka laid stress upon the judgments of the Allahabad High Court which uphold the stand of the Revenue. 6. Mr. Rajgopal, learned counsel for the assessee, submitted that the provisions of Section 64(1) applied only when the individual was a partner of a firm in his individual capacity and not in a representative capacity. There are judgments of the Andhra Pradesh, Gujarat, Punjab and Haryana and Delhi High Courts which support Mr. Rajgopal's contention. 7. Before we proceed to consider the judgments we propose to analyse the provisions of Section 64(l)(i) and Explanation 1 to Section 64 (1). By reason of the former, there shall, in computing the total income of an individual, be included the. income that arises to the spouse of such individual by reason of the spouse being a partner in a firm in which the individual is a partner. The 'individual' mentioned in the provision can either be the husband or the wife. Therefore the 'spouse' car) be* either the wife or the husband. There is no indication in clause (1) as to whether the income of the wife from the partnership has to be added on to the total income of the husband or whether the income of the husband from the partnership is to be added on to the total income of the wife. That indication is found in Explanation I to Section 64(1). That indication is found in Explanation I to Section 64(1). It provides that, for the purposes of clause (i), the individual, in computing whose total income the income referred to in clause (i) is to be included, shall be the husband or the wife whose total income, excluding the income referred to in clause (i) is greater. It is, therefore,.clear that section 64(1)(i) and Explanation I to sub-section (1) are integral parts of a scheme and must be read together. When so read, it is apparrent that the requirement is that the 'individual' must be a partner not in a representative but in a personal capacity. This is best illustrated by an example. Where both husband and wife are partners in individual capacities and the income of the wife, excluding the income derived from the partnership, is greater, the income of the husband derived from the partnership shall be added on to the income of the wife for the purposes of computing her total income. But if the husband is a partner in a representative capacity, as for example, as karta of an H.U.F., and his wife's income excluding the income derived from the partnership, is greater, the income derived by him from the partnership for and on behalf of the H.U.F. cannot be tacked on to the income of the wife for the purposes of computing her total income. 8. The first of the reported cases on the point is of a Division Bench of the Allahabad High Court in (Madho Prasad Pilibhit Vs. Commissioner of Income-tax, U.P.)1 The court considered the legal position of a karta of a Hindu joint family when he became a partner of a firm in the context of “a minor child of such individual from the admission of the minor to the benefits of partnership in a firm in which such individual is a partner “. [Sec.64(l)(ii) as it then read.] They referred to the judgments of the Supreme Court in (Firm Bhagat Ram Mohanlal v. Commissioner of Exess Profits Tax)2 and (Gommr. of Income-tax v. Bagyalakshmi Co.)3 It was held in the former case that when the ka/ta of a joint Hindu family entered into partnership with strangers, the. members of the family did not ipso facto become partners of the firm. of Income-tax v. Bagyalakshmi Co.)3 It was held in the former case that when the ka/ta of a joint Hindu family entered into partnership with strangers, the. members of the family did not ipso facto become partners of the firm. In the latter case it was held that a contract of partnerhsip had no concern with the obligation of the partners to others in respect of their shares of profit in the partnership. A partner could be a karta of a joint Hindu family in which case he occupied a dual position. Qua the partnership he functioned in his personal capacity and qua the third parties in his representative capacity. From this legal position it followed, according to the learned judges.of the Allahabad High Court, that the words “in which such individual is a partner” occurring in Section 64(1) indicated that, in order to attract the liability under clause/ii) the father of a minor admitted to the benefits of a partnership should be a partner of the firm, whether as an individual or as of a joint family. Since the joint family as such could not be a partner and only an individual could be a partner, the word 'individual' referred to the husband or wife of the “spouse” or the father of the minor and indicated that the share of the minor would be treated as the individual income of his father and not as the income of the joint family of which the father was the karta. The Allahabad High Court followed this decision in (Additional Commissioner of Income-tax v. Yashwantlal)4. In 1982 a Division Bench of the Allahabad High Court considered the judgments of other High Courts and referred the point for decision by a Full Bench. The Full Bench judgment is in (Sahu Govind Prasad v. Commissioner ojIncome-tax)5. The Full Bench reiterated the conclusion arrived at in Madho Prasad's case. In the context of the judgments of other High Courts it observed that though the karta may be a representative he continued to remain an individuland the share of his spouse or minor children from the firm was liable to be included while computing his total income as an individual. 9. The Allahabad decisions do not consider the impact of Explanation I to Section 64(1) upon the clauses thereof. As we have said, this Explanation must be read with the clauses. 9. The Allahabad decisions do not consider the impact of Explanation I to Section 64(1) upon the clauses thereof. As we have said, this Explanation must be read with the clauses. So read, we have no doubt that the 'individual' referred to therein is one who is a partner in an individual, not a representative capacity. 10. In (Commissioner of Income-tax v. Sanka Sankaraiah)6, a Division Bench of the Andhra Pradesh High Court held that the expression “individual” in Section 64(1) did not comprehend the karta of a joint family. Citing the Supreme Court judgment in Bagyalakshmi Co's case, the court observed that qua the partnership, a partner functions in his individual capacity and qua the third parties in a representative capacity. Where a person represented as a trustee or karta or benamidar, Section 64 could not be invoked. The Andhra Pradesh High Court was unable to share the view of the Allahabad High Court that the words “in which such individual is a partner” took in a karta or trustee or representative of a group of persons. The expression “individual”, in its view, only took in a person in his individual capacity and did not take in the karta of a Hindu joint family or a trustee or one who acted as a representative of others. 11. The Gujarat High Court in (Dinubhai Ishwarlal Patel v. K.D. Dixit, Income-tax Officer, Ahmedabad),7 followed the Andhra Pradesh judgment just cited and dissented from the Allahabad judgment in Madho Prasad's case. It held that the 'individual' referred to in Section 64(1) had to be one in his individual capacity so as to be capable of having a spouse or a minor child. Support was drawn from Explanation I to Section ' 64(1). It was clear, in view of the Explanation, that the 'individual' referred to in Section 64(1) “can only be an assessee who is being assessed in his individual capacity and not one who is being assessed in a representative capacity, either as representing an association of persons or a trustee or a HUF or some such similar other entity.” 12. It was clear, in view of the Explanation, that the 'individual' referred to in Section 64(1) “can only be an assessee who is being assessed in his individual capacity and not one who is being assessed in a representative capacity, either as representing an association of persons or a trustee or a HUF or some such similar other entity.” 12. The Punjab and Haryana High Court in (Commissioner of Income-tax, Patiala v. Anand Sarup)8, and (Commisioner of Income-tax, Haryana, Rohtak v. Shri A mar Nath Bhatia)9 and the Delhi High Court in (Prayag Dass Rajgarhia v. Commissioner of Income-tax, Delhi)10, have taken a view similar to that which has commended itself to the Andhra Pradesh and Gujarat High Courts and, indeed, to us. 13. We are of the view that the 'individual' contemplated by the provisions of Section 64(1) is an individual who is a partner of a firm in his individual capacity and not as karta and representative of an H.U.F. 14. Accordingly, we answer the question posed to us in the negative and in favour of the assessee. 15. The Revenue shall pay to the assessee the costs of the reference. Petition allowed. ----