# SAHU RAJESHWAR NATH v. INCOME-TAX OFFICER

- **Citation:** [1969] 1 S.C.R. 999
- **Court:** Supreme Court of India
- **Decided:** 1968-09-04
- **Case number:** Civil Appeal No. 1768 of 1967
- **Bench:** J.C. Shah, V. Ramaswami, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sahu-rajeshwar-nath-v-income-tax-officer-4547
- **Pages:** 7

## Headnote

Indian Income-tax Act (11 of 1922), ss. 29 and 4~Ta.t due from
an unregistered firm-Recovery proceedings against a partner-Whether
a separate notice to the partner necessary,
The appellant was a partner in an unregistered firm under the Incometax Act, 1922. The firm was assessed to mcome·tax. No notice of the
assessment proceedings was given to the appellant, nor was any notice of
demaod issued under s. 29 of the Income-ta.< Act. The appellant learnt
of the proceedings for the first time when
recovery proceedings were
started against him for the recovery of the tax. The appellant filed a writ
petition in the High Court challenging the iecovery of the tax from him.
The High Court dismissed the petition, which order was upheld in appeal
unde'r the Letters Patent. In appeal to this Court, the appellaot contended
tlaat (i) a separate notice under s. 29 of the Act was necessary and unless
such a notice was given, proceedings could not be initiated against the
appellant under s. 46 of the Income-tax Act for recovery of the tax; and
(li) The Collector on receipt of a certificate under s. 46(2) could not
recover f'rom the appellant the tax due from the unregistered partnership.
Dismissing the appeal, this Court,
HELD : (i) A notice under s. 29 of the Income-tax Act was not
necessary to be served upon the partner of an unregistered firm before
proceedings were taken for recovery of the tax under s. 46(2).
The
phrase '"other person liable to pay" in s. 29 should be construed as '"other
person liable to pay under the Income-tax Act and the liability cannot
therefore be construed with reference to the Partnership Act or any
other statute.
In the Income-tax Act itself lhe !;ability is imposed on
other persons to pay the tax apart from the assessee by several sections.
Under the Partnership Act 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 or more of the partners.
But a partner of ao unregistered firm does not fall with in the language of s. 29 of the Income-tax
Act, for the liability of the partner is not imposed on account of aoy
provision of the Income-tax Act itself [1002 G-1003 DJ
(ii) The proceedings taken for recovery of the tax by the respondents
against the appellaot were legally valid.
G
The proviso to s. 46(2) of the Income-tax 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 pnrpose of the recovery of an amount due under a decree." The provisions of
0. 21, r. 50(2) applied to the present case mutatis mutandis and since
the appellaot did not dispute that he was a partner of the unregistered
firm for the relevant accounting year, the Collector could lawfully P,oceed
H
to execute the certificate under s. 46(2) against the appellant and recover
the Income-tax arrears from him. [1003 HJ
•
Union of India v. Sat.vanarayan Khan, 42 I.T.R. 42 and
Ramgopal
Khemka v. Union of India, 60 I.T.R. 659, approved.
L!Sup. C. 1./69-18
• •
•
•
• •
•
•
•1000
SUPREME COURT RF.PORTS
[1969] J S.C.R.
T.
Got'indaswamy
v.
/nco111e-tax Officer, Special Survc:v Circle,
Bangclore, 38 1.T.R. 197 and i\1oti Purslzottam Das, v. lncorne-tax Officer
Dist. JI (iii) Kanpur, 39 l.T.R. 497, disapproved.
'

## Text

'
A
B
c
D
E
F
SAHU RAJESHWAR NATH
v.
INCOME-TAX OFFICER
September 4, 1968
•
(J.C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.]
Indian Income-tax Act (11 of 1922), ss. 29 and 4~Ta.t due from
an unregistered firm-Recovery proceedings against a partner-Whether
a separate notice to the partner necessary,
The appellant was a partner in an unregistered firm under the Incometax Act, 1922. The firm was assessed to mcome·tax. No notice of the
assessment proceedings was given to the appellant, nor was any notice of
demaod issued under s. 29 of the Income-ta.< Act. The appellant learnt
of the proceedings for the first time when
recovery proceedings were
started against him for the recovery of the tax. The appellant filed a writ
petition in the High Court challenging the iecovery of the tax from him.
The High Court dismissed the petition, which order was upheld in appeal
unde'r the Letters Patent. In appeal to this Court, the appellaot contended
tlaat (i) a separate notice under s. 29 of the Act was necessary and unless
such a notice was given, proceedings could not be initiated against the
appellant under s. 46 of the Income-tax Act for recovery of the tax; and
(li) The Collector on receipt of a certificate under s. 46(2) could not
recover f'rom the appellant the tax due from the unregistered partnership.
Dismissing the appeal, this Court,
HELD : (i) A notice under s. 29 of the Income-tax Act was not
necessary to be served upon the partner of an unregistered firm before
proceedings were taken for recovery of the tax under s. 46(2).
The
phrase '"other person liable to pay" in s. 29 should be construed as '"other
person liable to pay under the Income-tax Act and the liability cannot
therefore be construed with reference to the Partnership Act or any
other statute.
In the Income-tax Act itself lhe !;ability is imposed on
other persons to pay the tax apart from the assessee by several sections.
Under the Partnership Act 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 or more of the partners.
But a partner of ao unregistered firm does not fall with in the language of s. 29 of the Income-tax
Act, for the liability of the partner is not imposed on account of aoy
provision of the Income-tax Act itself [1002 G-1003 DJ
(ii) The proceedings taken for recovery of the tax by the respondents
against the appellaot were legally valid.
G
The proviso to s. 46(2) of the Income-tax 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 pnrpose of the recovery of an amount due under a decree." The provisions of
0. 21, r. 50(2) applied to the present case mutatis mutandis and since
the appellaot did not dispute that he was a partner of the unregistered
firm for the relevant accounting year, the Collector could lawfully P,oceed
H
to execute the certificate under s. 46(2) against the appellant and recover
the Income-tax arrears from him. [1003 HJ
•
Union of India v. Sat.vanarayan Khan, 42 I.T.R. 42 and
Ramgopal
Khemka v. Union of India, 60 I.T.R. 659, approved.
L!Sup. C. 1./69-18
• •
•
•
• •
•
•
•1000
SUPREME COURT RF.PORTS
[1969] J S.C.R.
T.
Got'indaswamy
v.
/nco111e-tax Officer, Special Survc:v Circle,
Bangclore, 38 1.T.R. 197 and i\1oti Purslzottam Das, v. lncorne-tax Officer
Dist. JI (iii) Kanpur, 39 l.T.R. 497, disapproved.
'
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1768 of
1967.
Appeal from the judgment and decree dated April 28, 1964
of the Allahabad High Court in Special Appeal No. 627 of 1961.
N. D,. Karkhanis, A. K. Sablok and B. P. Singh, for the appellant.
B. Sen, G. C. Sharma, R. N. Sachthey and B. D. Sharma for
respondent No. I .
The Judgment of the Court was delivered by
Ramaswami, J.
This appeal is brought by certificate from
the judgment of the Allahabad High Court dated April 28, 1964
In Special Appeal N°. 627 of 1961 by which the Division Bench
dismissed the appellant's appeal and confirmed the order of the
Single Judge dismissing the appellant's writ petition No. 194 of
1959.
The appellant alleged that he was a partner of a firm named
Regal Dchyderating Company, Meerut in which he held 12/53
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, CWard, 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 s. 29 of the Income Tax Act, 1922 (hereinafter called the 'Act'). It appears that the Income Tax Officer
forwarded a certificate to the Collector under s. 46 ( 2) of the Act
for recovery of the tax due and the case of the appellant is that
he !carnt of the proceedings for the first time in the third week
of September, 1958 when the Naib Tchsildar (Collection) Nagina
asked him to deposit the amount of income-tax.
The appellant
thereafter moved the Allahabad High Court for the grant of a
writ in the nature of mandamus restraining the respondents from
proceeding with the recovery of income-tax from the appellant
It was stated in the counter-affidavit of the respondents that the
return of income filed on behalf of the firm showed the appellant
to be a partner at the relevant time and there was no illegality in
the order of assessment or in the' recovery proceedings taken •
against the appellant.
The writ petition was dismissed by a Single
A
B
c
D
E
F
G
H
fl
\,
A
B.
c
D
E
F
G
H
•
s. R. NATH v. I.T.O. (Ramaswami, J.)
1001•
Judge on October 10, 1961 on the ground that the liability of
every partner in respect of the tax due from the firm was joint and
several and hence it was open to the Income Tax Officer to proceed against any one of the partners alone.
The appellant took
the matter in appeal under the Letters Patent but the appeal was
dismissed by the Division Bench on April 28, 1964. The Division Bench proceeded on the assumption that the appellant did
transfer his interest in the partnership firm in favour of Ram
Chander, though the respondents disputed the genuineness of the
alleged transfer.
The Division Bench held that even if the appellant 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 incometax dues of the partnership.
But the argument of learned Counsel was that a separate notice under s. 29 of the Act was necessary
and unless such a notice was given, proceedings could not be
initiated against the appellant under s. 46 for recovery of the
income-tax.
Mr. Karkhanis conceded that the accounting year
corresponding. to the assessment year 1945-46 was the Diwali
year ending in October, 1944 and therefore even on the assumption that the appellant had sold his interest in the partnership on
January 15, 1945, as he alleged, the liability to income-tax for
the relevant accounting year cannot be disputed by the appellant.
The sole question presented for determination in the present
appeal therefore is-when a firm not registered under the Act is
assessed to income-tax and a notice of demand is issued against
that firm, whether a separate notice of demand is necessary against
a partner of the firm if the tax assessed against the firm is sought
to be recovered from that partner.
Section 2(2) of the Act, as
it stood prior to the amendment by the Income-tax (Amendment)
Act, 1953, reads as follows:
" 'assessee' means a person by whom income-tax is
payable."
•
After the amendment the section reads :
" 'assessee' means a person by whom income-tax or
any other sum of money is payable under this Act, and
includes every person in respect of whom any proceeding under this Act has been taken for the assessment of
his income or of the loss sustained by him or of the
amount of refund due to him;"
••
•
•
••
• I 002
SUPREME COURT REPORTS
(1969] I S.C.R.
•
Section 29 of the Act states :
A
•
"When any tax, penalty or interest is due in consequence of any order passed under or in pursuance of
this Act, the Income-tax Officer 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 payablo.
B
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 assesscc by way of penalty_
( 2) The Income-tax Officer may forward
to the
Collector a certificate under his signature specifying the
c
amount of arrears due from an assessee, and the CollecD
tor, on receipt of such certificate, shall proceed to
recover from such assessee the amount specified therein
as if it were an arrear of land revenue :
Provided that without prejudice to any other powers
of the Collector in this behalf, he shall for the purpose
of recovering the said amount have the powers which
E
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.
Section 25 of the Partnership Act, 1932
(Act IV of 1932)
F
states ;
"Every partner is liable, jointly with all the other
partners and also severally, for all acts of the firm done
while he is a partner."
It was contended by Mr. Karkhanis that a notice of demand
G
should have been issued against the appellant under s. 29 of the
Act before any recovery proceeding was initiated against him.
It
was conceded that the unregistered partnership firm
was
the
assessee and the appellant wa> not the assessee.
But the argument was stressed that the appellant was "other person liable to
pay such tax" within the meaning of the language of s. 29 of the
11
Act.
In our opinion, there is no warrant or justification for this
argument.
The phrase "other person liable to pay" in s. 29 •
should be construed as "other person liable to pay under the
• •
s. R. NATH v. I.T.O. (Ramaswami, !.)
100 3.
A
Income Tax Act" and the liability cannot therefore be construed •
with reference to the Partnership Act or any other statute.
In
•
the Income Tax Act itself the liability is imposed on other persons
to pay the tax apart from the assessee by several sections.
For
example "the other person apart from the assessee" in the language
of s. 29 of the Act would include : (I) a member ;if a divided
B
family being liable for the assessment of the joint Hindu family
(s. 25A)., (2) a firm being liable for the partners' tax [second
proviso to s. 26(1)], (3) the executor administrator or other
legal representative being liable in respect of the tax payable by
a deceased person ( s. 24B), ( 4) a company in respect of the tax
c
levied upon a share-holder [s. 23A(3)], and (5) a person failing
to deduct tax at source under s. 18 [s. 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 or more of the partners.
But a partner of an unregistered firm does not fall within the Ian-
•
guage of s. 29 of the Act, for the liability of the partner is not
imposed on account of any provision of the Income Tax Act itself.
D
We are therefore of the opinion that a notice under s. 29 of the
Act is not necessary to be served upon the partner of an unregistered firm before proceedings are taken for recovery of the
tax under s. 46(2)
of the Act.
We
accordingly hold that
!
Mr. Karkhanis is unable to make good his
argument on this
aspect of the case.
E
Mr. Karkhanis then put forward the argument that it was not
open to the Collector on receipt of a certificate under s. 46(2)
of the Act to recover from the ·appellant the amount of tax due
from the unregistered partnership.
It was pointed out that the
certificate only mentioned the amount of arrears of tax due from
F
the assessee i.e., the unregistered partnership and the Collector
was empowered under that section to recover the amount specified
in the certificate "from such assessee".
It was, however, conceded by Mr. Karkhanis that under s. 25 of the Partnership Act
the partners are liable jointly and severally for satisfying all !iabilities of the partnership firm and the appellant would have been
G
Iiabl7 for the. income-tax dues of the partnership if proper proceedmgs, for mstance a suit, had been brought in a Civil Court
against him by the Income Tax authorities.
The point taken by
Mr. Karkhanis is that it was not open to the Collector in a pro-
,,
ceeding under s. 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 s. 46(2) of the Act
H
states that the Collector sh~ll, 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 reco:
••
•!004
Sl:PREME COURT REPORTS
[1969] I S.C.R.
•
very of an amount due under a decree."
Reference should be
A
•
made in this context to 0.21. r. 50 of the Civil Procedure Code
which states :
"50. (I) Where a decree has been passed against
a fim1, execution may be granted-
(a) against any property of the partnership;
B
( b) against any person who has appeared in his
own name under rule 6 or rule 7 of Order XXX or who
has admitted on the pleadings that he is, or who has
been ad judged to be, a partner;
( c) against any person who has been individually
served a~ a partner with a summons and has failed to
c
appear:
Provided that nothing in this sub-rule shall be deemed
to limit or otherwise affect the provisions of section 24 7
of the Indian Contract Act, 1872.
( 2) Where the decree-holder claims to be en ti tied
D
to cause the decree to be executed against any person
other than such a person as is referred to in sub-rule
(1), clauses (b) and (c) as being a partner in the firm,
he may apply to the Court which passed the decree for
-~
'
leave, and where the liability is not disputed,
such
Court may grant such leave, or, where such liability is
E
disputed, may order that the liability of such person be
tried and detennined in any manner in which any issue
in a suit may be tried and detennined.
"
........................................
In the present case we see no reason why the Collector should
F
not execute the certificate for demand of income-tax against the
appellant who admit' that he was a partner of the unregistered
firm for the relevant accounting year.
In the return filed by the
unregistered fim1 on January 19, 1945 at page 33 of the Paper
Book also the appellant is shown as one of the partners.
It is
manifest that the provisions of 0.21. r. 50(2) apply to the present
ca'e mutatis mutandis and since the appellant docs not dispute
G
that he was a partner of the unregistered firm for the relevant
accounting year, the Collector could lawfully proceed to execute
'
the certificate under s. 46 (2) of the Act against the appellant
,,
and recover the income-tax arrears from him.
It follows there-
·I.
fore that the proceedings taken for recovery of the tax by
the
ff
respondents against the appellant were le$ally valid and the appel-
!ant is not entitled to the grant of a wnt under Art. 226 of the
Constitution.
•
' \
A
s. R. NATH v. I.T.O. (Ramaswami, J.)
1005.
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( 2 ).
A.
contrary view has been taken by the Mysore High Court in T.
Govindaswamy v.
Income Tax Officer, Special Survey Circle,
Bangalore(") and by the Allahabad High Court in Moti Lal
Purshottam Das v. Income Tax Officer, Dist. II (iii), Kanpur(•).
But for the reasons already stated we hold that the latter two
decisions do not correctly state the law on the point.
We accordingly hold that this appeal fails and must be dismissed with costs.
Y.P.
(I) 42 l.T.R. 42.
(2) 60 l.T.R. 659.
•{3) 38 l.T.R.197.
(4) 39 1.T.R. 497.
Appeal dismissed,
••
•
•