RAJAGOPALAN, J

The only question debated before us in this application under article 226 of the Constitution for the issue of a writ of certiorari to quash the order of the Income-tax Officer, Nagapattnam, was the validity of section 4(2) of the Income-tax Act

The petitioner is the wife of one Mohammad Abdulla, who was admittedly a "non-resident" for the purposes of the Income-tax Act. He was a partner of a firm at Singapore. The finding of the Income-tax Officer was that the petitioner, who was a resident in the taxable territories, received during the year of account ending with 31st December, 1947, a sum of Rs. 10, 217 which constituted the remittances by her husband from Singapore. On this sum the petitioner was assessed to income-tax

One of the contentions of the petitioner before the taxing authorities was that these were not remittances to her at all but constituted remittances made by her husband to one Mohammad Yousuff, with directions to pay over the amounts to Abdulla's mother and sisters for their maintenance. The contention was negatived by the Income-tax Officer. The correctness of his conclusion is pending investigation in this appeal preferred by the petitioner. The validity of section 4(2) of the Act was argued before us on the assumption, that the finding of fact of the Income-tax Officer cannot be challenged before us. The correctness, of course, is open to challenge before the appellate authorities. Nothing that we say in these proceedings should be deemed as concluding that question of fact, whether these were remittances in fact to the petitioner the wife of Abdulla who himself was a non-resident

Though in the normal course we should have refrained from investigating the alleged invalidity of a statutory provision when the questions of fact on which such a contention could be based have not been concluded, we heard the learned counsel for the petitioner assuming the basic fact without deciding itThe validity of section 4(2) of the Act was challenged on two grounds : (1) it was beyond the legislative competence of the Indian Legislature when it enacted section 4(2) in 1939, and (2) section 4(2) as it now stands offends article 14 of the Constitution and is therefore void under article 13

Section 4(2) runs

"For the purposes of sub-section (1), where a husband is not a resident in the taxable territories remittances received by his wife resident in the taxable territories out of any part of his income which is not included in his total income shall be deemed to be income accruing in the taxable territories to the wife." *

The learned counsel for the petitioner referred to the definition of "income" in section 2(6C) of the Act. But that definition, of course, does not affect the question of legislative competence to enact section 4(2)

The issue of legislative competence has to be decided with reference to entry 54 of List I of the Seventh Schedule to the Government of India Act, 1935 : "Taxes on income other than agricultural income."

The learned counsel for the petitioner contended that what section 4(2) purports to tax is remittance. We are unable to agree. What it purports to tax is income. That portion of the non-resident's income, which is remitted to his wife resident within the taxable territories, is deemed for purposes of the Act to be her income. So, right through it is income that is taxed. It is only the non-resident husband's income remitted to his wife that is deemed to be her income. The basis of taxation is still income. Only the incidence of the taxation is not on the person to whom the income had accrued in the first instance, but the wife to whom that portion of the income was remitted. The wife is taxed because she is resident within the taxable territoriesIn B. N. Amina Umma v. Income-tax Officer, Kozhikode, a Division Bench of this Court, of which one of us was a member, followed the principle laid down by Viscount Finlay in John Smith and Son v. Moore and pointed out the difference