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TMI Blog1968 (9) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... 2/53 share. It was stated that on January 15, 1945, the appellant sold away his share in the partnership to one Ram Chander, son of Nathmal Das. The partnership firm was assessed to income-tax for the assessment year 1945-46, by the Income-tax Officer, C-Ward, Meerut, by the assessment order dated December 9, 1952, on a total income of Rs. 64,622. The case of the appellant was that he had ceased to be a partner at the time of the assessment and was not liable to pay the income-tax assessed upon the partnership firm. It was also stated that no notice of the assessment proceedings was given to the appellant, nor was any notice of demand issued under section 29 of the Income-tax Act, 1922 (hereinafter called " the Act "). It appears that the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt had transferred his interest in the partnership firm there was no change in the constitution of the firm and the transferee got only the rights in the profits in lieu of the transferring partner who did not cease to be a partner. During the hearing of the present appeal, Mr. Karkhanis, appearing on behalf of the appellant, mentioned at the outset that he will not press the argument that the appellant was not a partner of the unregistered firm during the relevant accounting year or that the appellant would not be liable for paying the income-tax dues of the partnership. But the argument of learned counsel was that a separate notice under section 29 of the Act was necessary and unless such a notice was given, proceedings could not be ini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er shall serve upon the assessee or other person liable to pay such tax, penalty or interest a notice of demand in the prescribed form specifying the sum so payable. " Section 46 of the Act reads as follows : " 46. (1) When an assessee is in default in making a payment of income-tax, the Income-tax Officer may in his discretion direct that, in addition to the amount of the arrears, a sum not exceeding that amount shall be recovered from the assessee by way of penalty... (2) The Income-tax Officer may forward to the Collector a certificate under his signature specifying the amount of arrears due from an assessee, and the Collector, on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee " in the language of section 29 of the Act would include : (1) a member of a divided family being liable for the assessment of the joint Hindu family (section 25A), (2) a firm being liable for the partners' tax [second proviso to section 26(1)], (3) the executor, administrator, or other legal representative being liable in respect of the tax payable by a deceased person (section 24B), (4) a company in respect of the tax levied upon a shareholder (section 23A(3)] and (5) a person failing to deduct tax at source under section 18 [section 18(7)]. It is true that under the Partnership Act the liability of the partners of a firm is joint and several and it is open to a creditor of the firm to recover the debt of the firm from any one o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not open to the Collector in a proceeding under section 46(2) of the Act to recover from the appellant the income-tax dues from the partnership. We are unable to accede to this argument. The proviso to section 46(2) of the Act states that the Collector shall, without prejudice to any other powers in that behalf " for the purpose of recovering the said amount, have the powers which under the Code of Civil Procedure, 1908 (V of 1908), a civil court has for the purpose of the recovery of an amount due under a decree. " Reference should be made in this context to Order XXI, rule 50, of the Civil Procedure Code which states : " 50, (1) Where a decree has been passed against a firm, execution may be granted-- (a) against any property of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant does not dispute that he was a partner of the unregistered firm for the relevant accounting year, the Collector could lawfully proceed to execute the certificate under section 46(2) of the Act against the appellant and recover the income-tax arrears from him. It follows, therefore, that the proceedings taken for recovery of the tax by the respondents against the appellant were legally valid and the appellant is not entitled to the grant of a writ under article 226 of the Constitution. The view that we have expressed is borne out by the decisions of the Calcutta High Court in Union of India v. Satyanarayan Khan and in Ramgopal Khemka v. Union of India. A contrary view has been taken by the Mysore High Court in T. Govindaswamy v. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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