Judgment :- 1. Taxation of income in the hands of spouses, has generated interesting legal questions. Even when the income was earned exclusively by, or by the profit generating means owned by and at the command of, a person, he might endeavour to make it appear that the income or the income resources, belong to a different person. That would serve the purpose of escaping the tax burden. Human nature being what it is, there will be total loss if the person trusted in that behalf, abuses it. Such a tragic turn would not ordinarily happen, if the arrangement is with one near and dear. Perhaps, the nearest and dearest relationship is that which exists between the spouses. 2. Transfers of property, with a view to avoid tax, had been made, virtually on the eve of marriage so as to overreach statutory provision nullifying, for tax purposes, such transfers between spouses. Other subterfuges too have been employed, for dividing the income and to reduce the impact of the tax. Governments, when alert and dynamic, used to intervene to protect the interests of the Revenue, even by amendatory process in relation to the existing statutes found deficient in some way or other. The result is a race between the assessee and the Revenue, where each one plays the part carefully and calculatedly, swiftly and intelligently. 3. A tax question where the husband and wife were in receipt of income as partners of the same firm, arises in these writ petitions, in the setting of an assessment under Agricultural Income Tax Act, 1950. 4. The facts are few and simple enough. Pambra Coffee Plantations is run under the auspices of a firm. There are many partners therein. Mr. Joseph George is one among the partners. His wife Achamma George is also a partner. 5. The firm had been assessed to tax for the assessment year 1978-79. The accounting period was 1-7-1976 to 30-6-1977. The share of income allocable to Joseph George and his wife were clubbed together on the basis of the statutory provision under S.9 (2)(1) of the Act. Joseph George was assessed in respect of the aggregate of the income-the individual share income, the share income of the wife, and other income unconnected with the firm. 6. The share of income allocable to Joseph George and his wife were clubbed together on the basis of the statutory provision under S.9 (2)(1) of the Act. Joseph George was assessed in respect of the aggregate of the income-the individual share income, the share income of the wife, and other income unconnected with the firm. 6. The Department felt that notwithstanding the subjection of Achamma George's share of income to tax in the hands of her husband, she could be individually taxed over again in relation to that very share income. The proposal was intimated to her. She protested. The protest was over-ruled. Ext.P-1 is the assessment. 7. A revision filed before the Deputy Commissioner Ext.P2 was dismissed under Ext.P3 dated 10-10-1986. The writ petition challenges the assessment made against the petitioner Achamma George. 8. An impression of unfairness adopted as against the assessee, may not come to her rescue. If tax is exigible, the hardship to the individual can be irrelevant. 9. Ordinarily, the assessee would be relegated to the remedy open under the statute. I am not inclined to adopt that practice in this case. The question raised is an important jurisdictional one. It is not advantageous either for the State or for the assessee to shirk the decision on the point, for an unreasonably long time. It is better that a final view is rendered by an authoritative decision of this Court. 10. The first stage of it, atleast, can be attempted herein. 11. The question is whether the provisions of the Agricultural Income Tax Act permit an assessment on a wife over again, after the self same income had suffered tax, in the hands of her husband, when subjecting the husband to tax for the wife's income was fully in tune with the statutory provisions. 12. No counter-affidavit has been filed by the State Government, even though the writ petitions had been filed as far back as 9-2-1987. The stand is inferred from the orders passed by the taxing authorities. The State's stand is essentially, if not exclusively, based on the S.10(1)(d). 13. It is unfortunate that the tax affairs of the State are so wantonly neglected even in cases where difficult and complicated questions arise. Those who are totally innocent about the background and complexities of taxing statutes, can give the Court only poor assistance. The State's stand is essentially, if not exclusively, based on the S.10(1)(d). 13. It is unfortunate that the tax affairs of the State are so wantonly neglected even in cases where difficult and complicated questions arise. Those who are totally innocent about the background and complexities of taxing statutes, can give the Court only poor assistance. The immediate sufferer is the State: (The ultimate damage is to public interest). 14. Before attempting an analysis of the statutory provisions, it is better at the very threshold, to address the Court itself on the Constitutional background of the taxing system. The scheme of our Constitution, envisions the basic requirements of the Rule of Law; namely, fairness, rationality and reasonableness. An interpretation which would create an unfair, irrational or unreasonable result, should, if possible, be avoided, and the statutory provision salvaged by giving the enacted section a subdued, and subordinate content, but one which is fully constitutional. This basic approach should influence the Court in the interpretational exercise to be adopted in relation to a fiscal statute too. 15. It is not as though a receipt of money, or the possession of an asset, cannot, in theory, be subjected to multiplicity of taxes. Depending upon the taxable event, the man who earned income, or amassed the wealth can be squeezed to the very narrow, by the forceful fist of the State. That theoretical possibility had been demonstrated by the Supreme Court in the Buckingham Carnatic Mills case. 16. For obvious reasons, including a promotion of self-interest in the facile collection of share of Revenue due to the State, taxing statutes have not raged with revenge on an enterprising assessee. The vedic concept of tax collection - of a butterfly perching on the petals of a blooming flower softly penetrating its proboscis, and sucking the honey, causing in that process the least hurt to the flower - is no longer there. Yet buoyancy of the economy, promotion of interest is a profitable and indefatigable industry all have resulted in appeasing approaches to the generation of income and wealth. Double taxation agreements and treaties between countries and legislations giving effect to such understandings between the Nations, (so as to obviate or reduce the hard effect of double taxation), are not unknown exercises, in the modern world. Double taxation agreements and treaties between countries and legislations giving effect to such understandings between the Nations, (so as to obviate or reduce the hard effect of double taxation), are not unknown exercises, in the modern world. At the same time, the Legislatures generally discourage make-belief fiscal arrangements, aimed at escaping or reducing the tax liability, and for that purpose cast the net very wide. 17. Bearing these aspects in mind, the statutory provision which calls for interpretation in the case may be usefully extracted. They are S.9(2)(a)(i),10(1)(d) and 18(5)(a) of the Agricultural Income Tax Act, 1950. They read: "9. Income from settlement, disposition etc. (2) In computing the total agricultural income of any individual for the purpose of assessment, there shall be included (a) so much of the agricultural income of S wife or minor child of such individual as arises direct or indirect - (i) from the membership of the wife in a firm of which her husband is a partner; 10.1. Exemption from assessment of income-tax:- Agricultural income-tax shall not be payable on that part of the total agricultural income of a person which is - (d) any such which he received out of the agricultural income in respect of which tax under this act has already been levied under S.9: Provided that all the aggregate of any sums exempted under this Section shall not exceed one sixth of the total agricultural income of the assessee or six thousand rupees whichever is less; Provided further that nothing contained in this Section shall be deemed to entitle a person who is assessed to income-tax under the Indian Income-Tax Act, 1922, to claim any deduction in respect of any sum referred to in this section if it was exempted under S.14 of the said Act. 18. 18. Assessment of Income.- (5) Notwithstanding anything contained in the foregoing sub-sections, when the assessee is a firm and the total income of the firm has been assessed under sub-section (1), sub-section (3) or sub-section (4), as the case may be (a) in the case of a registered firm, the sum payable by the firm itself shall not be determined but the total income of each partner of the firm, including therein his share of its income, profits and gains of the previous year, shall be assessed, and the sum payable by him on the basis of such assessment shall be determined; Provided that, if such share of any partner is a loss, it shall be set off against his other income or carried from and set off in accordance with the provisions of S.12: Provided further that, when any of such partners is a person not resident in the State, his share of the income, profits and gains of the firm shall be assessed on the firm at the rates which would be applicable if it were assessed on him personally, and the sum so determined as payable shall be paid by the firm and It 19. The contention of the State is that the proviso occurring after sub-clause (f), applies not merely to sub-clause (f), but also to other clauses, and consequently the ceiling provided for such exemption operates in relation to the exemption covered by S.10(1 )(d) as well. In other words, what is argued is that the income received by the wife who is a partner in a firm along with her husband, can be treated as her income and assessed as such, notwithstanding the fact that that income had already been treated as the income of the husband. A relief to the wife from the hardship arising out of the taxation is given, but subject to the limitation - of one sixth of the total income or six thousand rupees whichever is less. 20. The essential features of the taxation scheme may now be alluded to. As is well known, the key to a taxing enactment is its charging section. As regards the Act in question, the charging section is S.3. The head note of the section loudly proclaims: Charge of agricultural income. The agricultural income tax is charged for each financial year, on the total agricultural income of the previous year. As is well known, the key to a taxing enactment is its charging section. As regards the Act in question, the charging section is S.3. The head note of the section loudly proclaims: Charge of agricultural income. The agricultural income tax is charged for each financial year, on the total agricultural income of the previous year. The computation of the total agricultural income is provided for in elaborate detail in S.4. All agricultural income derived from the land situate in the State comes within the computation. It does not matter whether such agricultural income is received by the assessee within the State or outside. A person residing in Madras but having his cardamom plantations in Devikolam would thus be an assessee under the Act. His total income would take in the entire agricultural income derived from the plantation situate in the State of Kerala. The fact that he carries his produce to a place outside the State and receives the price, therefor outside the State, would not exonerate him from the tax liability, for, the agricultural income has been derived from the land situate within the State of Kerala. 21. Under S.4(1)(a),(b) and (c), certain exclusions have been made: agricultural income derived from the land situate outside the State; agricultural income derived by cultivation of the crops, specified therein such as paddy; tapioca, plantain, vegetables etc.; agricultural income derived from the property held under trust of the nature indicated in clause (b) and (c), subject to the conditions contained therein. In an attempt to discourage the creation of nominal or non-functionary trusts, additional provisions have now been incorporated by 1(aa) and 1B. 22. S.5 deals with the computation of the income. In accordance with the scheme of a taxation statute, various deductions found necessary for encouraging the income earning activity, are provided. Payment of revenue relatable to the land from which income is received, interest payments, repairs, depreciation, and the like come within this category. S.6 deals with the special situation where agricultural income is derived from the properties partly within the State and partly without. S.7 pertains .to the procedural area and deals with method of accounting. The position in relation to Court of Wards, Receivers, Administrators etc. is dealt with in S.8. S.6 deals with the special situation where agricultural income is derived from the properties partly within the State and partly without. S.7 pertains .to the procedural area and deals with method of accounting. The position in relation to Court of Wards, Receivers, Administrators etc. is dealt with in S.8. S.9(2) aimed at the spouses conniving together to escape altogether or reduce the incidence of tax due in respect of the agricultural income derived by both of them. It creates a statutory fiction as it were, by including the income of a wife or a minor child as the income of the husband. 23. We are not concerned with the case of the minor child and the provisions in that regard need not be referred to. Two types of income received by the wife and reckoned by ordinary law as the income of the wife, are deemed by the Statute to be the part of the total income of the husband; (1) The income of the wife arising directly or indirectly from the membership of the wife in a firm of which her husband is a partner' and (2) income of the wife from assets transferred directly or indirectly to the wife by the husband (the further details contained in that section are not relevant in this context.) In other words, the income of a wife as partner received from a firm in which her husband is also a partner, is treated as coming within the total income of the husband. If a fiction is so created, it should be extended in its effect and impact to all the permissible areas. The classic enunciation dealing with the operation of a fiction, cannot be overlooked in that context. When the statute commands a deeming of the putative state of affairs, as the real state of affairs, the imagination should not boggle half way through. 24. What will be the result, if that principle is applied to facts of the present case? The wife is as live a legal entity as the husband. Her income can be utilised by her in any manner she likes. She has got absolute powers of disposal over her income. Yet, for well known, sociological and fiscal reasons, her income is deemed not to be her income for certain purposes of a taxation enactment. It is treated as part of the total income of her husband. Her income can be utilised by her in any manner she likes. She has got absolute powers of disposal over her income. Yet, for well known, sociological and fiscal reasons, her income is deemed not to be her income for certain purposes of a taxation enactment. It is treated as part of the total income of her husband. It is taxed on the basis that it is part of the total income of the husband. The entirety of the income in her hands is thus treated as part of the total income of the husband, for the purpose of the Act. Whatever may be the actuality or factuality for the purpose of the law, her income is no longer hers; it is merged with or pulled into the total income of her husband. What has been in the hollow of her hands has been passed on to the palm of her husband. The law gives her only a hollow purse. When the law says so, one has to abide by that command. She cannot be heard to say otherwise. The constitutionality of the statutory provision creating that provision has been upheld. 25. Then comes the rub. The question is whether having gone thus for, can the law turn round and again say that the income is hers, and that she should account for it for assessment purposes under the Act? What the law has ordained for the purpose of assessment as regards a husband wife combine, shall not be permitted to be deviated or departed from, when it comes to the assessment of the very same income and under the very same enactment, as regards the wife. Looked that way, there is nothing with the wife, which would attract the agricultural income tax as regards her share of income from the firm. If that is the net result it would be impermissible for the assessing authorities, to tax that income, taking the stand that the wife continues to have such as income. What has been evaporated by a statutory sun shine, would be unavailable for the State, which has stood by and had benefited from that evaporation process. 26. Additionally, it has to be noted that S.10(1) is not the charging section. It is a section granting an exemption as the very title "exemption from assessment of income tax" indicates. 27. What has been evaporated by a statutory sun shine, would be unavailable for the State, which has stood by and had benefited from that evaporation process. 26. Additionally, it has to be noted that S.10(1) is not the charging section. It is a section granting an exemption as the very title "exemption from assessment of income tax" indicates. 27. The historical background of the legislation and the statutory provision, (which had been unearthed after somewhat strenuous effort in that behalf), has led to a comfortable conviction about the conclusion. The progress of taxation statute in. this field, could be traced cautiously, so as to watch the junction at which the conclusion is set in. 28. The Agricultural Income Tax Act, 1950 was initially intended to have territorial application over the former Travancore-Cochin portion of the State. The Travancore-Cochin Agricultural Income Tax (Amendment) Act as the Act was originally named soon after it had been framed, was itself an attempt at effecting uniformity in relation to the agricultural assessments over the component parts of the State of Travancore Cochin. It would appear that that Act had been modelled on the Travancore Income Tax Act of 1119. The Travancore Act had undergone an amendment in the year 1121 M.E. S.13 of the Travancore Act, had provided for various exemptions in the computation of the agricultural income. That was done under S.18. Exemptions under S.18 were of a general nature. Specified types of deductions were permitted under S.19. They were deductions having a closer nexus with the personal details of the assessee. If he had assured his life by means of a Life Insurance Policy, if he has joined a Provident Fund Scheme, or had been involved in other transactions referred to in that section, he could claim deductions of such sums in the computation of that Act. Sub-section (3) had set a ceiling of such deductions. There was a further provision dealing with the aggregate of the deductions that could be allowed. That was one sixth of the income or Rs.6000 whichever is less. However, when the 1950 Act was enacted, the provisions of S.13 and 14 of the Travancore Act, were rolled up into one. Sub-section (4) of S.19 providing for the aggregate was, however, retained. There was no doubt a careless and clumsy re-drafting. That was one sixth of the income or Rs.6000 whichever is less. However, when the 1950 Act was enacted, the provisions of S.13 and 14 of the Travancore Act, were rolled up into one. Sub-section (4) of S.19 providing for the aggregate was, however, retained. There was no doubt a careless and clumsy re-drafting. Soon after the formation of the State of Kerala on 1-11-1956, that Act was amended by the Agricultural Income Tax (Amendment) Act, Act 8/57, effective from 1-4-1957. With the numerous amendments, the Act continues, as basically Act 22 of 1950. No intention on the part of the Legislature to resort to a double taxation of the identical income is discernible in this amendatory process. The deductions of a general nature as provided and the ceiling specifically incorporated in relation to such specific deductions, had been overlooked by the Legislature when the section was recast. 29. It is well settled that the Constitution does not prohibit double taxation, provided there are enabling words in that behalf. (vide Jain Bros v. Union of India, AIR 1970 S. C. 778). This dictum about enabling words providing for double taxation has to be understood in the back drop of principles settled in taxation jurisprudence long time back. Speaking generally, income is taxable, but taxable only once. Such was the observation in Attorney-General v. London County Council, 5 Tax Cases, 242 at Page 260. A later case in the same volume of the law reports, Stevens v. The Durban-Roodepoort Gold Mining Company Ltd., (1909) 5 Tax cases 402, indicated a complementary proposition, that double taxation is permissible, if legislature distinctly tax it. These ideas have been reflected in Indian decisions too: of the High Court of Allahabad in Jyoti Prasad Agarwal v. Income tax Officer, B.Ward, Mathura, (1959) 37 I.T.R. 107; and later, of the Supreme Court itself in Commissioner of I.T. Bombay v. H. J. & P.G. and, B. Factory, AIR 1966 S.C. 1536. Some of the other decisions which have discussed legal principles of allied concepts are I.T. Commr., Calcutta v. B.N. Battacharjee,. AIR 1979 S.C.1724, K.P. Varghese v. I.T. Officer, Ernakulam. AIR 1981 S.C. 1932, I.T. Commissioner Bangalore v. J.H. Gotla, AIR 1985 S.C.1698 and Dhac Mal v. Prabhu Ram, AIR 1985 S.C.150. 30. Some of the other decisions which have discussed legal principles of allied concepts are I.T. Commr., Calcutta v. B.N. Battacharjee,. AIR 1979 S.C.1724, K.P. Varghese v. I.T. Officer, Ernakulam. AIR 1981 S.C. 1932, I.T. Commissioner Bangalore v. J.H. Gotla, AIR 1985 S.C.1698 and Dhac Mal v. Prabhu Ram, AIR 1985 S.C.150. 30. Wading through the various provisions of the Act, it is difficult to locate a conscious intention on the part of the Legislature to bring in the agricultural income of an assessee to subject it to double taxation. 31. Thus a consideration of all the relevant provisions of the Act, a survey of the historical background of those provisions, and evaluation of the broad and general practice in relation to taxation and taxation of agricultural income, I am clearly of the view that the income received by a wife in her capacity as a partner of a firm (in which her husband also happened to be a partner) could not be taxed over again in her hands, when such share of income from the firm had been already added on to the income of her husband. That being so, the assessing authorities did not have jurisdiction to have a repeat performance of assessment when the income of the wife had already been treated as part of the income of the husband, and taxed as such. In that view of the matter, the petitioners are entitled to reliefs from this Court. Ext.P3 in O.P. 1487/87 and Ext.P5 in O.P. 1450/87 are quashed. It is declared that the petitioners are not liable to be assessed for the share income of the firm, when such share income has already been taxed in the hands of their husband by assessments made on the husbands under the very same enactment. The writ petitions are allowed as above, but without any order as to costs.