Decided on November 15,1971



Parthasarathi, J. - (1.) THE petitioner and his father carried on business as partners under the name and style of " Kethmal Parekh and Co." THE firm commenced its business on April 16, 1961, and ceased to do business with effect from 13th November, 1963. THE Income-tax Officer made an order of assessment under which the firm became liable to pay tax for two successive years at Rs. 2,265 and Rs. 13,000. THE firm was treated as an unregistered one and assessment was made on that basis. THE petitioner's father died in 1964, It is averred by the petitioner that the deceased left no property. He also states that he could not pay arrears of tax because of the heavy loss sustained by the firm. It would appear that there was a levy of penalty under Section 221 to the tune of Rs. 1,750 and Rs. 9,000 for the two years in respect of which the default has occurred.
(2.) ON March 8, 1967, the Income-tax Officer, Kothagudem, the second respondent herein, forwarded certificate to the Tax Recovery Officer under Section 222 of the Income-tax Act, 1961 (which for the sake of brevity will be referred to as "the Act" hereafter). The amounts recoverable as per the certificate are Rs. 4,162.20 and Rs. 22,793.13. These amounts are inclusive of the interest that accrued due up to the issue of the certificate. The person named in the certificate is the firm of Kethmal Parekh and Co. It is submitted by the petitioner that there was no notice of demand served on him by the second respondent. It is further averred that the certificate issued under Section 222 of the Act mentions the name of the firm alone as the defaulter. On 21st August, 1971, a notice under Rule 73of the Second Schedule of the Act has been served on the petitioner calling upon him to show cause why he should not be arrested and detained in civil prison. The notice recites that a sum of Rs. 37,978.10 for the assessment years 1962-63 and 1963-64 remains unpaid. On receipt of the notice the petitioner appeared before the Tax Recovery Officer, the first respondent herein, and sought adjournment of the case till October 11, 1971.
(3.) ON October 4, 1971, the petitioner applied to the Inspecting Assistant Commissioner of Income-tax, Hyderabad, asking for the settlement of the arrears at Rs. 8,000 and also for stay of the proceedings of arrest till the disposal of the petition. But, the Assistant Commissioner orally intimated to the petitioner that an earlier application in that behalf was already rejected. The petitioner seeks a writ of prohibition restraining the further proceedings by the first respondent. It is the case of the petitioner that the notice issued under Rule 73 is devoid of jurisdiction inasmuch as he is not a defaulter within the meaning of Rule 1 of the Second Schedule of the Act. There is no certificate issued by the second respondent naming the petitioner as the assessee against whom proceedings under the Second Schedule are to be taken. Another ground urged in the petition is that the issue of a certificate naming the petitioner is a condition precedent for the application of the provisions of the Second Schedule against the petitioner.;

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