Decided on August 24,1960


Cited Judgements :-



RENUPADA MUKHERJEE, J. - (1.)THIS appeal arises out of a suit instituted by the appellant, Satya Narayan Khan, in the trial court for several reliefs. The principal relief prayed for by the plaintiff was for a declaration that a certificate filed by the Certificate Officer of Alipore, 24 -Parganas, in Certificate Case No. 2069 I.T. -51 -52 is invalid, in -operative and not binding upon the plaintiff. Some other reliefs were also prayed for, which are incidental to the main relief. There was also a prayer for a declaration that the assessment made on the dissolved firm is illegal and ultra vires. THIS last prayer was not pressed in this appeal.
(2.)THE suit was contested in the trail court be defendants Nos. 3 and 4, namely, the Income -tax Officer, District I, Calcutta, and the Union of India. THE grounds of contest will appear from the body of the judgment. THE suit was dismissed by the trial court which refused all the prayers asked for by the plaintiff. So this appeal was preferred by the plaintiff. THE appeal was resisted by respondents Nos. 3 and 4, who also contested the suit in the trial court.
Some broad facts of the case are admitted. They may be set out below :

There was an unregistered firm bearing the name and style of "Satya Narayan Khan Kali Charan Sadhukhan Bepin Behary Tat", which carried on business in various kinds of oil, in premises No. 49, Strand Road, Calcutta. The partnership firm was dissolved in Baishak 1354 B.S., corresponding to sometime in April, 1947. After the dissolution of the firm the Income -tax Officer made an assessment on the firm for the income -tax year 1946 -47 under section 23(4) of the Indian Income -tax Act. This assessment was completed, on 28th February, 1951, and a sum of Rs. 31,000 was assessed as being payable by the firm. A demand notice to that effect was issued on the firm on 21st March, 1957 (vide demand notice, exhibit "B -1").

The amount stated in the demand notice was not paid up by the firm or by its partners. Thereafter the Income -tax Officer passed an order on 28th March, 1952, directing that the amount should be realised from the plaintiff under section 26(2) treating him as a successor to the firm. A certificate under section 46(2) of the Income -tax Act was prepared by the Income -tax Officer and forwarded to the Collector of 24 -Parganas for realisation of the amount as an arrear of land revenue (vide exhibit "D -2").

(3.)AFTER the above requisition was received from the Income -tax Officer, the Certificate Officer of 24 -Parganas prepared prepared and filed a certificate on 31st March, 1952 (vide exhibit "A"). Notice was issued to the certificate debtor who was described in the certificate of public demand in the following terms :
"Satya Narayan Khan and others. Now succeeded by Satya Narayan khan, 49, Strand Road, Calcutta."

After having issued the notice the Certificate Officer proceeded to recover the amount in accordance with the procedure prescribed by the Public Demands Recovery Act. An objection was thereafter filed by the present appellant contending that he was not liable for the amount in question. This objection was rejected on 30th August, 1952, by the Certificate Officer and so the present suit was instituted by the plaintiff for the reliefs which we have already mentioned. The suit was dismissed by the trial court and so this appeal had been filed by the plaintiff. Dr.Gupta, appearing on behalf of the appellant, contended before us that if anybody was liable on account of tax based upon the assessment already mentioned, it was the firm, Satya Narayan Khan Kali Charan Sadhukhan Bepin Behary Tat, and not the plaintiff who was not a successor to the business carried on by the firm. Dr. Gupta did not question the legality of the assessment which had been made by the Income -tax Officer on the dissolved firm mentioned above. His contention was that the Income -tax Officer erroneously held that Satya Narayan Khan had succeeded to the business carried on by the firm. Dr. Gupta submitted that the business which had been carried on by the unregistered firm was discontinued by the dissolution of the firm in April, 1947, and the plaintiff appellant began to carrying on a separate and independent business unconnected with the previous business of the unregistered firm and so he should not be regarded as a successor to the partnership firm.


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