TMI Blog2007 (7) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... ffered to pay tax on the said amount. It was disclosed in the said petition that the said income was for the assessment years 1958-59 to 1961-62 during the period when Surjit was a partner. The income-tax authority allowed the application by accepting such undisclosed income of Rs. 46.15 lakhs and assessed tax accordingly. The income-tax authority imposed the assessed tax accordingly amongst the partners including Surjit. When the order was served on Surjit, Surjit by letter dated May 12, 1969, informed the Revenue that he did not get any benefit of the said sum of Rs. 46.15 lakhs. Since he had retired from the partnership long ago such assessment of tax upon him was illegal. He, however, contended that since he was saddled with the liabili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating that he did not get any benefit of such alleged undisclosed income of Rs. 46.15 lakhs and such tax liability should be discharged by the firm itself and its existing partners. The learned single judge by his Lordship's judgment and order dated April 22, 2003, dismissed the writ petition inter alia holding as follows: "(i) The partnership deed dated March 3, 1961, shows that the continuing partners took upon themselves the liability of the firm which included liability to sundry creditors amounting to the aforesaid sum of Rs. 46.15 lakhs. (ii) Respondent No. 5 was not liable according to the said deed of partnership to pay any part or portion of the aforesaid liability. (iii) Almost 5 years after retirement of respondent No. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meant to be exercised for unjustly enriching a person'." Being aggrieved by and/or dissatisfied with the judgment and order of the learned single judge the appellant filed the instant appeal. Dr. Debiprasad Pal, learned senior counsel appearing for the appellant in support of the appeal contended as follows: (i) Before issuing any order of attachment and before taking a decision to recover the tax liability from the firm under section 182(4) of the said Act, 1961, the Revenue would have to form an opinion that such liability could not be recovered from the partner upon whom it was sought to be imposed. (ii) Assuming that such tax liability of the firm could be imposed upon the firm and recovered from them such recovery could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 118 of the paper book. The appellant, however, approached this court in 1990. Such belated challenge was rightly refused by the learned single judge. (iv) The appellant had an alternative remedy of an appeal against the order of the Revenue. The appellant without exhausting the remedy available in law approached this court and the learned single judge rightly rejected the same. Surjit initially appeared before the learned single judge. However, Mr. Raja Basu, learned advocate appearing for Surjit prayed for leave to retire before us and as such no submission was made on behalf of Surjit before us. In support of their contentions the parties cited the following decisions: (1) ITO v. Radha Krishan [1967] 66 ITR 590 (SC); (2) Kalva S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such statutory liability. Hence, the Revenue was entitled to invoke section 182(4). The reason for invoking section 182(4) was clearly spelt in the said order passed by the Revenue challenged in the writ petition. In any event, the order of rejection of their contention passed by the Revenue on April 11, 1980, directing the firm to discharge the tax liability was not contemporaneously challenged by the appellant and such belated attempt, in our view, is not maintainable. The writ court is a court of equity. The writ court exercises discretion considering the facts and circumstances involved in the said case. In the instant case we have no hesitation to observe that the appellant had taken an unfair approach to avoid statutory liability. H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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