Satyanarayana Raju, J.
1. This is an application, under Article 226 of the Constitution of India, for the issue of a writ of certiorari to quash the order of the Income-tax Officer, Main Circle, Nellore, dated 11-5-1953, and the consequential order dated 30-12-1954 assessing the petitioner to tax.
2. The petitioner is a partner in the firm of Messrs. E. Venkatanarasa Reddy and Co., Gudur, along with his two major sons and a minor son Ananta Padmanabha Reddi, who has been admitted to the benefits of the partnership. In the assessment year, 1952-53, the petitioner's income was computed at Rs. 82,392/- and therein was included the income pertaining to the share of his minor son, according to the provisions of Section 16(3)(a)(ii) of the Income-tax Act. This assessment was made on 11-3-1953, and admittedly the petitioner preferred no appeal against the said assessment order.
On 30-12-1954, the assessment was revised under Section 35 after obtaining the concurrence of the assessee by adopting the correct share of income from the various firms in which he was a partner. The petitioner preferred an appeal against the latter order, which was dismissed by the Appellate Assistant Commissioner on 31-8-1955, A further revision filed by him before the Commissioner of Income-tax was dismissed on 13-7-1957.
3. The petitioner challenges the validity of the proceedings before the Income-tax Officer oh the ground that Section 16(3)(a)(ii) of the Income-tax Act, which was introduced by an amendment Act of 1937, conflicts with Section 40 and consequently is ineffective; that the co-existence of Sections 40 and 16(3)(a)(ii) is contrary to the scheme of the Act; and that the impugned provision also offends Article 14 of the Constitution in that it discriminates against the father in the matter of taxation.
4. On behalf of the respondent (Income-tax Officer) it is contended that Section 16(3)(a)(ii) is not invalid on any of the grounds raised by the petitioner, and that the present writ petition having been filed after four and a half years from the date of the order, without exhausting the alternative remedies provided under the Income-tax Act, is liable to be dismissed on the ground of laches.
5. In Venkatasubba Rao v. D.T.S. (Traffic), Vijayawada (1957) 2 A W.R. 233: AIR 1958 A P 206, a Division Bench of this Court, consisting of Subba Rao, C.J., and Manohar Pershad, J., held that applications under Art, 226 of the Constitution would be entertained only if they were filed within a reasonable time from the date of the making of the order and that ordinarily, a period of six months might be considered reasonable, though, in extraordinary circumstances, the High Court might, in its discretion, excuse the delay. It was there pointed out that
'Otherwise, while periods of limitation are fixed for every form of remedy available to a party, there will not be any time limit for the exercise of the extraordinary jurisdiction of this Court. The exercise of power under Article 226 by a Court irrespective of any time lag will introduce complications and unsettle rights finally decided by authorities empowered to do so'.
The petitioner has not offered any reasonable explanation for excusing the inordinate delay of 4-1/2 years from the date of the making of the order, and this petition should therefore fail on the ground of laches. All the same, having regard to the fact that the learned counsel has argued the matter fully, we will deal the contention regarding the validity of the impugned provision.
6. The validity of this section was challenged before a Division Bench of the Madras High Court in Amina Umma v. Income-tax Officer : 26ITR137(Mad) , on the grounds (1) that it was beyond the legislative powers of the Central Legislature conferred on it by Entry 54 of List I of the Seventh Schedule of the Government of India Act, 1935; and (2) that even if the provision was intra vires when enacted in 1937, it offended the fundamental fights guaranteed under Articles 14 and 19(1)(g) of the Constitution and was therefore unenforceable.
After a careful and exhaustive consideration of the matters raised before them, Satyanaryana Rao and Rajagopalan, JJ., held that the impugned provision was within the legislative powers conferred on the Central Legislature by Entry 54 read with Section 100 of the Government of India Act, 1935, and that it did not also contravene any of the fundamental rights guaranteed by the Constitution of India. This decision is binding upon us and we are in respectful agreement with the reasoning and the conclusions reached by the learned Judges.
7. Sri Ananta Babu has, however, argued that after the decision of the Supreme Court in Commissioner of Income-tax, MP and Bhopal v. Sen Sodra Devi : 32ITR615(SC) , the contentions raised by him require to be examined afresh and that in any view, the validity of the provision with reference to its alleged conflict with Section 40 of the Income-tax Act must be considered. In the Supreme Court decision their Lordships had to determine whether the word 'individual' occurring in Section 16(3)(a)(ii) of the Act 'includes also a female and the income of their minor sons derived from A partnership fo the benefits of which they have been admitted is' liable to be included in the income of the mother who is a member of that partnership'. Section 16(3) of the Act provides:
''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 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 the partnership in a firm of which such individual is a partner.....':
8. On a consideration of the above provision, the Supreme Court held that
'the words 'any individual' and 'such individual' occurring in Section 16(3) of the Act are restricted in their connotation to mean only the male of the species, and do not include the female of the species', and 'in computing the total income of a mother the income of her minor child arising from the admission of the minor to the benefits of partnership in a firm of which the mother is a partner, cannot be included under Section 16(3)(a)(ii)'.
9. It is urged before us that, having regard to the restricted connotation given by the Supreme Court to the word 'individual' there is now a discrimination between a father and mother which offends Article 14 of the Constitution.
10. It was as a result of the recommendations made by the Income-tax Enquiry Commission in 1936, which were accepted by the Government and the Legislature, that the impugned provision was incorporated in the Income-tax Act. Its recommendations were as follows:
''There is also a growing and serious tendency to avoid taxation by the admission of minor children to the benefits of partnership in the father's business. Moreover, the admission 'is, as a rule, merely nominal, hut being supported by entries in the firm's book the Income-tax Officer is rarely in a position to prove that the alleged participation in the benefits of partnership is unreal. There is the genuine case which is intended to be relieved by the Income-tax (Second Amendment) Act, 19133, and the question arises as to the nature and extent of the restriction, which will exclude from relief only the case in which a father is attempting to obtain an allowance for what is, in effect, merely the cost of maintenance of his children.
We suggest that the income of a minor should be deemed to be the income of the father (1) if it arises from the benefits of the partnership in a business in which the father is a partner, or (2) if, being the income of a minor other than a married daughter, it is derived from assets transferred directly or indirectly to the minor by his or her father or mother, and (3) if it is derived from assets apportioned to him in the partition of a Hindu undivided family'.
The statement of objects and reasons embodies the above recommendation as justifying the incorporation of the amendment. The amendment, therefore, sought to achieve the purpose of preventing a parent screening his own real income by the expedient of transferring legal title to it to his minor child. It was, therefore, an attempt to prevent by legislation an evasion of just tax liability. With reference to the connotation of the word 'individual' on the impugned provision, the Supreme Court accepted the view that the word in the context could not include a mother but referred only to a male. The question then is whether the impugned provision, as interpreted by the Supreme Court offends Article 14, which reads:
'The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India'.
11. The principles underlying the provisions of this Article have been summarised by a Full Bench of the Supreme Court in Budhan Choudhury v. State of Bihar, : 1955CriLJ374 , in the following terms:-
'It is now well-established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that that differentia must have a rational relation to the object sought 'to be achieved by the statute in question. The classification may be founded on different boses, namely, geographical or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration'.
12. We are of opinion that the legislation in the present case does not violate the principles of the equality clause. It is well settled that a legislature which has to deal with diverse problems arising out of an infinite variety of human relations must, of necessity, have the power of making special laws to attain particular objects; and for that purpose it must have large wwers of selection or classification of persons and things upon which such laws are to operate. Mere differentiation or inequality of treatment does not per se amount to discrimination within the inhibition of the equal protection clause.
To attract the operation of the clause, it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that it does not rest on any rational basis having regard to the object which the legislature has in view. The impugned provision applies to the parents of the male species uniformly and without any discrimination. There is no differential treatment in the matter of taxation of fathers; all of them are treated alike. The petitioner is made liable for tax on the income of his minor son. It cannot be gainsaid that within the class that falls within the purview of Section 16(3)(a)(ii), there is no inequality in the operation of the taxing provision. The classification being reasonable, there is no denial of the equal protection of the laws within the meaning of Article 14 of the Constitution.
13. It is then argued that the impugned provision conflicts with Section 40 and that the co-existence of Sections 40 and 16(3)(a)(ii) is contrary to the scheme of the Act, Section 40 reads:-
'(1) Where the guardian or trustee of any person being a minor, lunatic or idiot (all of which persons are hereinafter in this sub-section included in the term 'beneficiary') is entitled to receive on behalf of such beneficiary or is in receipt on behalf of such beneficiary of any income, profits or gains chargeable under this Act, the tax shall be levied upon and recoverable from such guardian or trustee, as the case may be, in like manner and to the same amount as it would be leviable upon and recoverable from any such beneficiary if of full age or sound mind, and in direct receipt of such income, profits or gains, and all the provisions of this Act shall apply accordingly.
(2) Where the trustee or agent of any person nob resident in the taxable territories, and not being a minor 'lunatic or idiot' (such person being hereinafter in this sub-section referred to as a 'beneficiary') is entitled to receive on behalf of such beneficiary or is in receipt on behalf of such beneficiary, of any income, profits or gains chargeable under this Act, the tax, if not levied on the beneficiary direct, may be levied upon and recovered from such trustee or agent, as the case may be, in like manner and to the same amount as it would be leviable upon and recoverable from the beneficiary if in direct receipt of such income, profits or gains, and all the provisions of this Act shall apply accordingly'.
Under Section 16(3)(a)(ii), the income of the minor is liable for inclusion in the total income of the father. Section 40 of the Act provides for assessment on the guardian or trustee of a minor, lunatic or idiot or on the trustee Or an agent of a non-resident in respect of income which he received or is entitled to receive on behalf of the incapacitated person, or the nonresident. This section is intended to facilitate the collection of tax. It does not affect the incidence of tax under Sections 3 and 4 which are the charging sections. Section 40 is not a charging section but provides the machinery for collection. Where the income is received by the guardian on behalf of a beneficiary, the guardian is made liable. Section 40 and the impugned provision are different in scope and content. They are intended to serve different purposes, and we fail to see any conflict between the two provisions.
14. All the contentions raised on behalf of the petitioner having been negatived, this writ petition fails and is dismissed with costs. Advocate's fee Rs. 100/-.