Offending of provisions of Article 14 and 19(g).

Rajagopalan, J.-These are applications under article 226 of the Constitution for issue of writs of prohibition directing the Income-tax officer to desist from continuing the assessment proceedings against the petitioner under the Income-tax Act for the assessment years 1952-53 and 1953-54.

The petitioner is the widow of Haji K.M. Ahmed Kutty. He had a twelve annas’ share in the partnership which consisted of himself and one Abdulla Ahmed Kutty who died on 5th July, 1950. His heirs were his two wives, three minor children by the first wife (the petitioner) and two minor children by the second wife. The partnership was reconstituted on 25th December, 1950 with three partners, the petitioner, Abdulla and Khader Kutti, brother of the petitioner. The three minor children of the petitioner were admitted to the benefits of that partnership with a total of eight annas’ share between them. The petitioner was entitled to a four annas’ share. This partnership also was registered under section 26-A of the Income-tax Act. After determining the income of the firm for the assessment year 1952-53, and after apportioning it between the sharers under section 23(5) of the Income-tax Act, the Income-tax officer assessed the petitioner to tax on her income and also that of her three minor children under the provisions of section 16(3) (a) (ii) of the Income-tax Act. It was on the same basis that he proposed to assess the petitioner for the assessment year 1953-54 also, but that assessment had not been completed when the petitioner filed these petitions in this Court for the issue of writs of prohibition. The petitioner challenged the validity of the proceedings before the Income-tax officer on the ground that section 16(3) of the Income-tax Act was ultra vires the Central Legislature.

Section 16(3) (a) (ii) of the Income-tax Act which was inserted by the Amending Act IV of 1937 runs:

“In computing the total income of any individual for the purpose of assessment, there shall be included-

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

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

The validity of this section (hereinafter referred to as the impugned provision) was challenged on the following grounds: -

(i) it was beyond the legislative powers of the Central Legislature conferred on it by entry 54 of list 1 of Schedule VII of the Government of India Act, 1935; (ii) even if the provision was intra vires when enacted in 1937, It offended the fundamental rights guaranteed under articles 14 and 19 (g) of the Constitution and was therefore unenforceable against the petitioner in the relevant assessment years.

Though the petitioner challenged the validity of the whole of section 16(3) of the Income-tax Act, it is only the validity of the second sub-clause of section 16 (3)(a) that directly arises for determination in the proceedings before us. That question of legislative competence will have to be determined primarily on the basis of the language of the Government of India Act, entry 54 of list 1 read with section 100 of the Government of India Act. Section 100(1) ran:

“Notwithstanding anything in the two succeeding sub-sections, the Federal Legislature has and a Provincial Legislature has not power to make laws with respect to any of the matters enumerated in list 1 in the seventh Schedule to this Act (hereinafter called the Federal Legislative List).”

Entry 54 of that list ran:

“Taxes on income other than agricultural income.”

That entry is identical with item 82 in list 1 of the seventh schedule to the Constitution of India.

Section 16(3) (a) (ii) of the Income-tax Act authorises the inclusion in the income of an individual for the purposes of assessment so much of the income of his or her minor child as arises directly or indirectly from the admission of that minor child to the benefit of partnership in a firm of which such individu

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