Judgment :- R. JAYASIMHA BABU, J. The question is as to whether the words "total income" in sub-para II of para A in Part III of the Finance Act, 1986, which refers to the income of the individual would also include the income of other persons whose income is required to be treated as part of his income under s. 64 of the IT Act, 1961, which occurs in Chapter V of the IT Act, is the question that arises for consideration of this reference. Sub-para II of para A of Part III of the Finance Act, 1986, prescribes the rates of income-tax in respect of an HUF which at any time during the previous year has at least one member whose total income of the previous year relevant to the assessment year commencing on the 1st April, 1987, exceeds Rs. 18, 000. Sec. 64 of the IT Act does not deal with, or refer to the HUF. It provides for including the income of spouse, minor child, etc. Sec. 64 clearly recognizes the fact that the income of the spouse and the income of the minor child is not the income of the individual in whose hands such income has to be assessed. It is only for the purpose of assessment to tax that the income of others is to be included in the income of the assessee. The Supreme Court, in the case of CIT vs. Smt. P. K. Kochammu Amma, Peroke, after examining s. 64 of the IT Act, held that it is clear from s. 64 of the Act that though the share of the spouse or minor child in the profits of a partnership firm in which the assessee is a partner is not income of the assessee, but is the income of such spouse or minor child, it is liable to be included in computing the total income of the assessee and it would be assessable to tax in the hands of the assessee. The Court further observed that the income of such minor or spouse would be part of "his income" for the purpose of assessment to tax and would have to be shown in the return of income filed by the assessee. The Court further observed that the income of such minor or spouse would be part of "his income" for the purpose of assessment to tax and would have to be shown in the return of income filed by the assessee. The reason for so holding, as stated by the Supreme Court is that the charge of income-tax levied by the Act is on the total income of the assessee, and total income is defined in s. 2(45) of the Act to mean the total amount of income referred to in s. 5 , computed in the manner laid down in the Act. That was held by the Court to be subject to the other provisions of the Act and, therefore, if the income of any other person is declared by any provision of the Act to be includible in computing the total income exigible to tax under s. 4 of the Act and as s. 64(1) was one such provision, the income of the spouse and minor was to be included in the income of the assessee.Learned counsel for the assessee submitted that s. 64 of the Act has not declared that the income of the spouse or the minor children is the income of the other spouse or the parent, but it only makes that assessee's spouse or parent liable to include the income of the spouse or the minor child in his return and pay tax by treating the same as part of this income, and also pay the penalties in case of his failure to do so. That, however, according to counsel does not have the effect of making the income of others the income of the assessee for all purposes, and make the income of the minors includible in the income of the HUF as the income of the member of the HUF for the purpose of sub-para II of para A of Part III of the Finance Act, 1986. In support of his submission, counsel relied on the decision of the Supreme Court in the case of CIT vs. Elphinstone Spinning & Weaving Mills Co. Ltd. which case arose under the Finance Act, in judgment of the Full Bench of that Court particularly the passages at pp. 197 and 198 which dealt with the limits up to which fiction can be carried. Counsel referred to the passages quoted therein. Ltd. which case arose under the Finance Act, in judgment of the Full Bench of that Court particularly the passages at pp. 197 and 198 which dealt with the limits up to which fiction can be carried. Counsel referred to the passages quoted therein. More particularly the quotation, inter alia, to the effect that no fiction shall extend to work an injury, that its proper operation is only to prevent a mischief or remedy or inconvenience that might result from the general rule of law. Counsel for the Revenue on the other hand relied on the decision of the apex Court in the case of CIT vs. Smt. P. K. Kochammu Amma, Peroke (supra). In this case, it is not in dispute that the member of the undivided family who had been assessed to an income of Rs. 18, 000 did not himself in his own right have an assessable income. He was assessed to tax only by reason of inclusion of the income of the minors under s. 64 of the Act. Those minors were not members of the HUF. Had those minors attained the age of majority and been subjected to tax directly, their income would not have been treated as the income of the assessee and in any event their income would not be treated as income received by the member of the HUF. The inclusion of the income of the spouse and the minor, in the income of the other spouse or of the parent in terms of s. 64 of the Act, is meant to ensure that the income so derived by the spouse or minor is taxed in the hands of the other spouse or parent at the appropriate rate and it is for that purpose that their income is to be regarded as part of the total in the assessee. As has been held by the Supreme Court, s. 5 of the IT Act is subject to the other provisions of the Act including s. 64 and, therefore, income which is required to be included in the income of the assessee though not includible strictly in terms of s. 5 of the Act nevertheless should be regarded as part of the total income.The words used in sub-para II of para A of Part III of the Finance Act, 1986 The reference to total income in the Finance Act, 1986 Sec. 64 of the Act does not, as contended by counsel for the assessee, create any fiction. It specifically provides for the inclusion of the income of the spouse and minor child in the income of the other spouse or parent, and the occasion to include their income arises out of the provisions of the Act and is to be treated as part of the total income of the assessee. Though the effect of such treatment can also be described as deeming the income of the minor to be that of the income of the parent, it is not so much by deeming, as by specific requirement that that income be included in the income of the parent, that it is treated as part of the total income. After it is so treated as forming part of the total income, it remains a part of the total income and is not required to be deleted therefrom, once the inclusion is properly made. That is the reason why an assessee who fails to include the income required to be included under s. 64 of the Act, is subject of penalties, if he fails to file his return showing such income also as part of his total income.The total income so determined under the Act is the total income that is referred to in the Finance Act, 1986. The facts of the case considered by the Supreme Court with reference to the Finance Act, 1951. Our answer to the question referred to us, namely : "Whether the Tribunal is correct in holding that the assessee is not a specified HUF liable to be charged at the higher rate ?" is, therefore, in favour of the Revenue and against the assessee. There will be no order as to costs.