Ramaswami, J. - (1.) This appeal is brought by certificate from the judgment of the Allahabad High Court dated April 28, 1964 in Special Appeal No. 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 of1959.
(2.) The appellant alleged that he was a partner of a firm named Regal Dehydrating 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, 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 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 Section 46 (2) of the Act for recovery of the tax due and the case of the appellant is that he learnt of the proceeding for the first time in the third week of September, 1958 when the Naib Tehsildar (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 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.
(3.) 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 initiated against the appellant under Section 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 liabiity to income-tax for the relevant accounting year cannot be disputed by the appellant.;