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In the case of CIT v. Smt. Pratima Saha (108TAX7) the assessee was drawing a salary as nurse cum supervisor from a nursing home in which her husband was a partner. She was though a science graduate yet did not possess any certificate, degree or diploma from any recognized institute where knowledge of nursing is imparted. Section 11 of the Schedule of Nursing Council Act, 1947, provides that professional nursing qualification is a must for acting as a nurse. In the context of application of proviso to section 64(1) the Gauhati High Court held that in order to escape the clubbing provision the assessee must satisfy the two conditions which must co-exist in order to attract its applicability. The conditions as stated by the Court are:


  1. the spouse must posses technical or professional qualification, &
  2. If the first condition i.e., possession of technical or professional qualification is satisfied, the court of law would further examine whether the income earned by such a spouse is solely attributable to the qualification of his or her technical or professional knowledge and experience or not.


At the same time the Court held that may be the possession of any degree or diploma is not essential for attracting the applicability of the proviso, the court of law in each case would be called upon to determine as to whether a spouse has been able to satisfy the conditions of the proviso in order to avoid clubbing. For instance no degree or diploma may be needed in certain ordinary business or general merchandise business or grocery shop. Further the Court held that though the proviso do not specifically provide for possession of a degree or diploma from a recognized institute yet the assessing officer can require the assessee to produce such certificate depending on the nature of employment. In other words such a condition cannot be dispensed with in all cases. In summing up the propositions under the law on this subject the Court held that the proviso lays down two conditions and it is on satisfaction of both the conditions that the same can be applied in a given case. Both the conditions are cumulative and not alternative. In other words if the first condition is not satisfied one need not go to the second requirement.

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