TMI Blog1979 (11) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... y of an amount of Rs. 96,710, being arrears of income-tax due by M/s. Rajalakshmi Textiles. The notice further stated that in default of payment steps would be taken in accordance with the Second Schedule to the I.T. Act, 1961. The facts are not in dispute. M/s. Rajalakshmi Textiles was a registered firm and had been assessed to income-tax for the assessment years 1962-63 and 1963-64 in the status of a registered firm. Against the order of assessment, an appeal had been filed to the AAC of Income-tax and during the pendency of that appeal, the certificate had been issued by the ITO, Central Circle-II, Bangalore, for recovery of the amount due by virtue of the original assessment orders. The contention for the petitioner is that he was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid Act, and the rules made there-under." Two certificates have been issued in relation to two assessment years and are addressed to the TRO, Bangalore. It is, therefore, clear that the defaulter mentioned in the certificate was the assessee, namely, M/s. Rajalakshmi Textiles, the firm. This is in accordance with the definition in cl. 1 of the Second Schedule to the Act, where "defaulter" is defined as meaning the assessee mentioned in the certificate. Under similar circumstances this court held in P. Balchand v. TRO [1974] 95 ITR 321 that it could not be enforced against a person who was not named in the certificate merely on the ground that he was a partner. Shri Rajasekhara Murthy, learned counsel for the respondent, however, submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there should first be an assessment. A notice of demand should be served on the assessee in regard to whom assessment is made and if default is made in payment of the amount demanded then such assessee would become an assessee in default. It is thereafter that proceedings for recovery by the issue of a certificate can be initiated. The primary thing that the assessment must be against a person who is ultimately sought to be proceeded against and notice of demand should have been served on him consequent on such assessment. The instant case does not satisfy this requirement. In Writ Appeal No. 22 of 1974 [TRO v. P. Balchand [1980] 121 ITR 871 (Kar)] this court also noticed the decision of the High Court of Andhra Pradesh in Kethmal Parekh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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