Judgment

SUBBA RAO, J. : This writ petition filed under Art. 32 of the Constitution raises the question of the constitutional validity of S. 16 (3) (a) (i) of the Indian Income-tax Act, 1922 (Act XI of 1922), (hereinafter called the Act).

2. The facts are not in dispute and may be briefly narrated. The petitioner, Balaji, his six sons, and his wife, by name Godawaribai, constituted a joint Hindu family. The family was a trading family and it had, besides business in money-lending, considerable agricultural lands. On November 23, 1946, two of his sons became divided from the family. In the year 1951, through the intervention of mediators the other members of the family were also divided and another major member started a separate business on his own. Thereafter, the petitioner and his wife formed themselves into a partnership to carry on their business and admitted their three minor sons to the benefits thereof. On September 22, 1952, a partnership deed was executed giving an equal share to each of the partners. On the basis of the partnership deed, in respect of the assessment year 1952-53 the petitioner filed two applications before the Income-tax Officer, Wardha, one under S. 25A of the Act for recognizing the partition, and the other under S. 26A for registration of the firm. Both the applications were finally ordered by the Income-tax Appellate Tribunal, Bombay, by its order dated September 3, 1958, that is, the partition was recognized and the firm was granted registration. For the assessment years 1953-54 and 1954-55 also, the Income-tax Department registered the firm under S. 26A of the Act. The assessment proceedings in respect of the said three years are pending before the concerned Income-tax authorities. For the assessment year 1955-56 also, the Income-tax Officer allowed the registration of the firm, but determined the total income of the petitioner at Rs. 2,44,625 as against the total income returned by him at Rs. 58,232. The disparity arose because, while the assessee excluded from his total income the income of the partnership falling to the shares of his wife and three minor sons, the Income-tax Officer included the share income of his wife and three minor sons in the said business in the total income of the petitioner. The petitioner, by the present petition, challenges the constitutional validity of S. 16 (3) (a) (i) and (ii) of the Act, and prays for a declaration that the said provisions are ultra vires the Constitution and for the issue of a writ of certiorari quashing the assessment order dated March 15, 1960, and for the issue of a writ of prohibition restraining the respondents from including the share income of his wife and minor children from the partnership firm in his total income and taxing the same in his hands.

3-4. The first question raised is whether the appropriate Legislature had the competence to enact S. 10 (8) (a) ii) and (ii) of the Act. It would he convenient at the outset to read the relevant part of the said section.

Section 16. (3) In computing the total income of any individual for the purpose of assessment, there shall be included-

(a) so much of the income of a wife or a minor child of such individual as arises directly or indirectly-

(i) from the membership of the wife in a firm of which her husband is a partner;

(ii) from the admission of the minor to the benefits of partnership in a firm of which such individual is a partner.

Section 16 provides for the computation of total income of a person and describes what sums are to be included and what sums are to be excluded therefrom. Under sub-cls. (i) and (ii) of cl. (a) of sub-s. (3) of the said section, the shares in the profits of the firm received by the wife and the minor children shall be included in the total income of the individual. Under the said sub-clauses an individual is made liable to pay tax in respect of the income of his wife and minor children, though the said liability is confined to the circumstances mentioned therein.

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