AMINA UMMA B M Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) 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.

(2.) THE petitioner is the widow of Haji K. M. Ahmed Kutty. He had a 12 annas share in the partnership which consisted of himself and one Abdulla. Ahmed Kutty died on 5-7-1950. 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 25-12-1950 with three partners, the petitioner, Abdulla and Khader Kutti, a brother of the petitioner. THE three minor children of the petitioner were admitted to the benefits of that partnership with a total of 8 annas share between them. THE petitioner was entitled to a four annas share. This partnership also was registered under Section 26-A, Income-tax Act.

(3.) THE contention of Sri. Rajah Aiyar, the learned counsel for the petitioner was that entry 54 in the Federal Legislative list of the Government of India Act, 1935, did not confer on the legislature any legislative power to tax A on the income of B that is in this case to tax the petitioner on the income of her minor children. Acceptance of that contention means that entry 54 would have to be read or at least interpreted as "a tax on income of the person assessed to the tax." Does entry 54 read with Section 100, Government of India Act, 1935 necessarily carry with it such a limitation is the question for determination. It was a rule of construction repeatedly laid down by Courts in India and in England that Chagla C. J. restated when he observed in --'J.N. Duggan v. Income-tax Commr., Bombay City', (A) :