We are a married couple in Goa governed by the communiao dos bens. The officer has assessed the whole of the rent and the business income on my husband. Is that right, and what happens to our salaries?
It is not right. Section 5A applies where husband and wife are governed by the system of community of property known under the Portuguese Civil Code of 1860 as 'COMMUNIAO DOS BENS', in force in the State of Goa and in the Union territories of Dadra and Nagar Haveli and Daman and Diu. Sub-section (1) says that the income of the husband and of the wife under any head of income shall not be assessed as that of the community of property, whether treated as an association of persons or a body of individuals; that such income under each head of income other than under the head 'Salaries' shall be apportioned equally between the husband and the wife; and that the income so apportioned shall be included separately in the total income of each, the remaining provisions of the Act applying accordingly. Sub-section (2) carves salary out: where the husband or the wife has any income under the head 'Salaries', that income is to be included in the total income of the spouse who has actually earned it.
Decided by the CBDT Circulars & Instructions (Not applicable — statutory text), reported as Section 5A of the Income-tax Act, 1961, as amended up to 2023. It bears on section 5A, section 4, section 5, section 15 of the Income Tax Act 1961, in Assessment & Scrutiny, Residence & Treaty Benefit, House Property and Salary & Perquisites matters.
This is a small section that decides the whole assessment for a population of taxpayers who do not fit anywhere else in the Act. The Act is built on the individual and, where it departs from that, it usually does so by adding income to somebody — section 64 clubs, section 60 to 63 re-attributes a transferred income. Section 5A does the opposite. It takes income that under the general law would belong to the marital community and splits it, and it forbids the community from being assessed as an association of persons or a body of individuals. An officer who frames an assessment on the community in either character, or who assesses the whole of the rent or the business profit on the husband because the property stands in his name or the licence is in his name, has not made an error of estimation; he has assessed the wrong person on half the income. The salary carve-out is the part most often got wrong in both directions. A couple who believe that everything is halved will file two returns each showing half the combined salary, which is contrary to sub-section (2); an officer who believes nothing is halved will assess the whole of the non-salary income on the earner, which is contrary to sub-section (1). The rule is simply that salary follows the person who actually earned it and everything else is divided equally. The closing words of sub-section (1) do more work than they look. 'The remaining provisions of this Act shall apply accordingly' means each half is a separate total income for every other purpose — its own Chapter VI-A deductions, its own basic exemption, its own rebate, its own return filing obligation and its own liability for advance tax. Where the couple's combined income sits near a threshold, the apportionment can put both spouses below it, and a return prepared on the assumption that one spouse carries the whole load overstates the tax by more than the half it apportions.
Binding on the department, not on the assessee or the courts. An assessee may rely on a circular that is beneficial to them.
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Section 5A, printed under the heading 'Apportionment of income between spouses governed by Portuguese Civil Code', reads in full: '(1) Where the husband and wife are governed by the system of community of property (known under the Portuguese Civil Code of 1860 as "COMMUNIAO DOS BENS") in force in the State of Goa and in the Union territories of Dadra and Nagar Haveli and Daman and Diu, the income of the husband and of the wife under any head of income shall not be assessed as that of such community of property (whether treated as an association of persons or a body of individuals), but such income of the husband and of the wife under each head of income (other than under the head "Salaries") shall be apportioned equally between the husband and the wife and the income so apportioned shall be included separately in the total income of the husband and of the wife respectively, and the remaining provisions of this Act shall apply accordingly. (2) Where the husband or, as the case may be, the wife governed by the aforesaid system of community of property has any income under the head "Salaries", such income shall be included in the total income of the spouse who has actually earned it.' The section has two sub-sections, no proviso and no Explanation, and the text carries no amendment footnote against any part of it.
Where the spouses are governed by the community of property system of the Portuguese Civil Code of 1860 in force in Goa and in the Union territories of Dadra and Nagar Haveli and Daman and Diu, the community is not itself the assessee. The income is not to be assessed as that of the community, whether treated as an association of persons or as a body of individuals. Instead the income under each head, other than salary, is apportioned equally between husband and wife and included separately in each of their total incomes, and the remaining provisions of the Act then apply to each half. Salary income is an exception in both directions: it is not apportioned, and it belongs to the spouse who actually earned it.
Not applicable — this is a statement of statutory text read on the departmental page for the section. No judicial reasoning is involved, and no decision construing section 5A was located.
…the income of the husband and of the wife under any head of income shall not be assessed as that of such community of property (whether treated as an association of persons or a body of individuals), but such income of the husband and of the wife under each head of income (other than under the head "Salaries") shall be apportioned equally between the husband and the wife and the income so apportioned shall be included separately in the total income of the husband and of the wife respectively, and the remaining provisions of this Act shall apply accordingly.
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Handle my notice → Ask a CA on WhatsAppIt is not right. Section 5A applies where husband and wife are governed by the system of community of property known under the Portuguese Civil Code of 1860 as 'COMMUNIAO DOS BENS', in force in the State of Goa and in the Union territories of Dadra and Nagar Haveli and Daman and Diu. Sub-section (1) says that the income of the husband and of the wife under any head of income shall not be assessed as that of the community of property, whether treated as an association of persons or a body of individuals; that such income under each head of income other than under the head 'Salaries' shall be apportioned equally between the husband and the wife; and that the income so apportioned shall be included separately in the total income of each, the remaining provisions of the Act applying accordingly. Sub-section (2) carves salary out: where the husband or the wife has any income under the head 'Salaries', that income is to be included in the total income of the spouse who has actually earned it. This was decided by the CBDT Circulars & Instructions (Not applicable — statutory text) and bears on section 5A, section 4, section 5, section 15 of the Income Tax Act 1961. It is reported as Section 5A of the Income-tax Act, 1961, as amended up to 2023. This is a small section that decides the whole assessment for a population of taxpayers who do not fit anywhere else in the Act. The Act is built on the individual and, where it departs from that, it usually does so by adding income to somebody — section 64 clubs, section 60 to 63 re-attributes a transferred income. Section 5A does the opposite. It takes income that under the general law would belong to the marital community and splits it, and it forbids the community from being assessed as an association of persons or a body of individuals. An officer who frames an assessment on the community in either character, or who assesses the whole of the rent or the business profit on the husband because the property stands in his name or the licence is in his name, has not made an error of estimation; he has assessed the wrong person on half the income. The salary carve-out is the part most often got wrong in both directions. A couple who believe that everything is halved will file two returns each showing half the combined salary, which is contrary to sub-section (2); an officer who believes nothing is halved will assess the whole of the non-salary income on the earner, which is contrary to sub-section (1). The rule is simply that salary follows the person who actually earned it and everything else is divided equally. The closing words of sub-section (1) do more work than they look. 'The remaining provisions of this Act shall apply accordingly' means each half is a separate total income for every other purpose — its own Chapter VI-A deductions, its own basic exemption, its own rebate, its own return filing obligation and its own liability for advance tax. Where the couple's combined income sits near a threshold, the apportionment can put both spouses below it, and a return prepared on the assumption that one spouse carries the whole load overstates the tax by more than the half it apportions. If it applies to you, the first step is this: Establish that the couple is in fact governed by the system. The section is not about domicile in Goa, Dadra and Nagar Haveli, or Daman and Diu; it applies where the husband and wife 'are governed by the system of community of property', and a couple married under a different marital property regime is outside it even if resident there.
Section 5A, printed under the heading 'Apportionment of income between spouses governed by Portuguese Civil Code', reads in full: '(1) Where the husband and wife are governed by the system of community of property (known under the Portuguese Civil Code of 1860 as "COMMUNIAO DOS BENS") in force in the State of Goa and in the Union territories of Dadra and Nagar Haveli and Daman and Diu, the income of the husband and of the wife under any head of income shall not be assessed as that of such community of property (whether treated as an association of persons or a body of individuals), but such income of the husband and of the wife under each head of income (other than under the head "Salaries") shall be apportioned equally between the husband and the wife and the income so apportioned shall be included separately in the total income of the husband and of the wife respectively, and the remaining provisions of this Act shall apply accordingly. (2) Where the husband or, as the case may be, the wife governed by the aforesaid system of community of property has any income under the head "Salaries", such income shall be included in the total income of the spouse who has actually earned it.' The section has two sub-sections, no proviso and no Explanation, and the text carries no amendment footnote against any part of it. It was decided by the CBDT Circulars & Instructions (Not applicable — statutory text). On those facts the CBDT Circulars & Instructions held as follows. Where the spouses are governed by the community of property system of the Portuguese Civil Code of 1860 in force in Goa and in the Union territories of Dadra and Nagar Haveli and Daman and Diu, the community is not itself the assessee. The income is not to be assessed as that of the community, whether treated as an association of persons or as a body of individuals. Instead the income under each head, other than salary, is apportioned equally between husband and wife and included separately in each of their total incomes, and the remaining provisions of the Act then apply to each half. Salary income is an exception in both directions: it is not apportioned, and it belongs to the spouse who actually earned it.
Not applicable — this is a statement of statutory text read on the departmental page for the section. No judicial reasoning is involved, and no decision construing section 5A was located. In the words reproduced by the source cited on this page: "…the income of the husband and of the wife under any head of income shall not be assessed as that of such community of property (whether treated as an association of persons or a body of individuals), but such income of the husband and of the wife under each head of income (other than under the head "Salaries") shall be apportioned equally between the husband and the wife and the income so apportioned shall be included separately in the total income of the husband and of the wife respectively, and the remaining provisions of this Act shall apply accordingly."
It was decided by the CBDT Circulars & Instructions and is reported as Section 5A of the Income-tax Act, 1961, as amended up to 2023. Binding on the department, not on the assessee or the courts. An assessee may rely on a circular that is beneficial to them. A CBDT circular or instruction binds officers of the department but not the assessee and not the courts. Where a circular helps you, you may hold the department to it. Where it hurts you, it cannot override the Act or a judgment. On section 5A, section 4, section 5, section 15, the practical question is whether the facts of your own notice match the facts of this case closely enough for the same rule to apply.
It cuts both ways and is cited by both sides. Where the spouses are governed by the community of property system of the Portuguese Civil Code of 1860 in force in Goa and in the Union territories of Dadra and Nagar Haveli and Daman and Diu, the community is not itself the assessee. The income is not to be assessed as that of the community, whether treated as an association of persons or as a body of individuals. Instead the income under each head, other than salary, is apportioned equally between husband and wife and included separately in each of their total incomes, and the remaining provisions of the Act then apply to each half. Salary income is an exception in both directions: it is not apportioned, and it belongs to the spouse who actually earned it. It arises in Assessment & Scrutiny, Residence & Treaty Benefit, House Property and Salary & Perquisites matters, on section 5A, section 4, section 5, section 15 of the Income Tax Act 1961, and was decided by Not applicable — statutory text. Before relying on it, read the source linked on this page and check whether it has since been distinguished, overruled or overtaken by an amendment to the Income Tax Act. In practice the steps that follow from it are these. Take the income head by head. The apportionment operates 'under each head of income', so house property income, business or professional income, capital gains and income from other sources are each split in half after being computed under their own head. Leave salary where it was earned. Sub-section (2) is express: salary income is included in the total income of the spouse who actually earned it, and is not halved. Resist an assessment on the community of property as such. The section says in terms that the income shall not be assessed as that of the community of property, whether treated as an association of persons or a body of individuals; an assessment framed on the community in either character is contrary to the section. Apply the rest of the Act to each half separately. The section ends 'and the remaining provisions of this Act shall apply accordingly', so each spouse's half carries its own deductions, its own slab and its own rebate. Do not import section 64 into this. Section 5A is not a clubbing provision and does not depend on any transfer of assets; it is a rule about whose income the income is in the first place. Where the officer has assessed one spouse on the whole, take the point in the first appeal on the ground that the computation is contrary to section 5A rather than as a question of quantum; the head-by-head apportionment is a matter of law on admitted facts.
Still good law. The section stands as printed. The text read carries no amendment footnote against any part of either sub-section. Only one dated consolidation of the section could be located, so this entry records no comparison across vintages and makes no claim that the section has stood unchanged over its life. What can be said is that the text above is what that consolidation prints, and that the corroborating list on this entry is deliberately empty rather than padded. One feature of the drafting is worth recording as a matter of validity rather than commentary. The territorial words name 'the State of Goa and ... the Union territories of Dadra and Nagar Haveli and Daman and Diu'. Those two Union territories were merged into a single Union territory with effect from 26 January 2020, and the text read does not show the section's words having been altered to follow that merger. Nothing turns on it for the operation of the section, because the governing condition is the marital property system the spouses are subject to and not the administrative name of the territory; but a practitioner should not be surprised by the older nomenclature and should not treat it as evidence that the text is out of date. No commencement footnote is printed, so the date on which the section was inserted has not been established and no date is given on this entry. No judicial decision construing section 5A has been found, so nothing is said here about how the section has been applied where only one spouse is a resident, where the couple separates during the year, or where a business is carried on by one spouse alone. The successor provision under the Income-tax Act, 2025 has not been read and none is given. No source could be cited for that finding. Checking whether an authority still stands matters as much as knowing what it held: a decision may be overruled on one point and survive on another, or the provision it interprets may have been amended since. Read the source and the editor's note on this page before relying on it in a reply to an Assessing Officer or in an appeal.
ON THE TEXT. Both sub-sections are set out above in the words in which they are printed, with no proviso, no Explanation and no amendment footnote. The capitalised 'COMMUNIAO DOS BENS' is how the section prints it and is reproduced as printed rather than normalised. WHAT WAS NOT DONE. No second dated consolidation of the section could be located, so there is no cross-text comparison behind this entry and the corroborating list is empty. That is a limitation on the evidence, not a finding that no other text exists. THE BIGGEST GAP, and it decides whether the section applies at all. The Portuguese Civil Code of 1860 has not been read, and nothing is said here about what the community of property system requires, how a couple becomes subject to it, whether it can be contracted out of by an ante-nuptial agreement, or what happens on separation or on the death of a spouse. Those are questions of the applicable civil law and they are not answered on this page. Establish the marital property regime from the marriage record before relying on the section. ON THE TERRITORIAL REFERENCE. The section names Dadra and Nagar Haveli and Daman and Diu as separate Union territories. That is how it is printed and it is reproduced as printed; no view is expressed here on the effect, if any, of the later merger of those territories, because no amending instrument has been read. ON THE SECTIONS NAMED. Sections 4, 5 and 15 appear on this entry because the section operates on the charge, on the scope of total income and on the head of salary respectively, and each is mentioned in the prose. None of them has been transcribed. Section 64 is discussed only to say what this section is not, and no label for it is carried. ON DATES AND SUCCESSORS. No commencement date has been found and none is given. No judicial decision construing section 5A has been found, and none is cited. No successor provision under the Income-tax Act, 2025 has been read, so none is given and this entry carries no 2025-Act label. For a tax year beginning before 1 April 2026 the 1961 Act continues to govern proceedings pending and proceedings initiated afterwards, so section 5A remains the operative rule for those years and should be read as live law rather than as history. This library shows the verification state of every entry openly. This entry has not yet been read in full by a chartered accountant. The summary reflects the sources listed on this page. Read the source before you rely on it in a reply to an Assessing Officer or in an appeal before the Commissioner (Appeals) or the Income Tax Appellate Tribunal.
Where the spouses are governed by the community of property system of the Portuguese Civil Code of 1860 in force in Goa and in the Union territories of Dadra and Nagar Haveli and Daman and Diu, the community is not itself the assessee. The income is not to be assessed as that of the community, whether treated as an association of persons or as a body of individuals. Instead the income under each head, other than salary, is apportioned equally between husband and wife and included separately in each of their total incomes, and the remaining provisions of the Act then apply to each half. Salary income is an exception in both directions: it is not apportioned, and it belongs to the spouse who actually earned it.
TaxSphere, “Statutory position — s.5A: equal apportionment between spouses under the Portuguese Civil Code, and the one head of income it leaves alone”, https://taxnotice.vittsphere.com/caselaw/case/statutory-position-5a-the-portuguese-civil-code-apportionment-and-the-one-head-it-does-not-touch/ (validity last checked 2026-09-23)
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