JUDGMENT

Gulati, J. - This petition under Article 226 of the Constitution is directed against an order dated December 31, 1971, passed u/s 154/155 of the Income Tax Act, 1961.

2. The assessee is a partner in a firm called "M/s. Rajendra Silica works". She had also income from royalty, interest on securities, ground rent and property. For the past several years the petitioner is being assessed to Income Tax in respect of the income arising to her from her share in the partnership firm. The income from other sources is being assessed in the hands of her husband u/s 16(3)(a)(iii) of the Indian Income Tax Act, 1922, and since the coming into force of the Income Tax Act, 1961, is being assessed under Clause (iii) of Section 64 of that Act, presumably because the income from those sources arises to the petitioner from assets transferred to her by her husband. Similar assessments were made in respect of the assessment year 1967-68, when the income arising from the partnership was assessed in the hands of the petitioner, while the income arising from other sources was assessed in the hands of her husband. Later on, the Income Tax Officer appears to have formed the opinion that by virtue of the Explanation attached to Section 64 of the Income Tax Act, 1961, the income from zamindari abolition bonds and royalties, etc., which was previously assessed in the hands of the husband should have been included in the income of the petitioner as her income was greater. He, accordingly, issued a notice u/s 151 with a view to rectify the assessment order. The assessee objected to the proposed rectification. But the Income Tax Officer did not accept her objection and finally passed an order on December 31, 1971. The original assessment order had taken the share income of the assessee from the partnership business provisionally at Rs. 15,000 subject to rectification on the assessment of the firm. It appears that in the meantime the assessment of the firm had been completed and the share income of the assessee was found to be Rs. 29,270. The Income Tax Officer, accordingly, passed a composite order u/s 154/155 of the Income Tax Act, 1961, computing the total income of the assessee as under:

3. This assessment order has been challenged in this petition. It is necessary to quote in full Section 64 along with the Explanation.

"64. Income of individual to include income of spouse, minor child, etc.--In computing the total income of any individual, there shall be included all such income as arises directly or indirectly-

(i) to the spouse of such individual from the membership of the spouse in a firm carrying on a business in which such individual is a partner;

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

(iii) subject to the provisions of Clause (i) of Section 27, to the spouse of such individual from assets transferred directly or indirectly to the spouse by such individual otherwise than for adequate consideration or in connection with an agreement to live apart;

(iv) subject to the provisions of Clause (i) of Section 27 to a minor child, not being a married daughter of such individual, from assets transferred directly or indirectly to the minor child by such individual otherwise than for adequate consideration; and

(v) to any person or association of persons from assets transferred otherwise than for adequate consideration to the person or association of persons by such individual, to the extent to which the income from such assets is for the immediate or deferred benefit of his or her spouse or minor child (not being a married daughter) or both.

Explanation.--For the purposes of Clause (i) the individual in computing whose total income the income referred to in that clause is