Bachawat, J. - (1.) In these rules the petitioner firm seeks orders quashing and setting aside all proceedings in certificate cases Nos. 158, I.T.(C) of 1955-56, 159 I.T.(C) of 1955-56, 160 I.T.(C) of 1955-56 and 161 I.T.(C) of 1955-56 in respect of four certificates all dated March 29, 1956, signed by the certificate officer, 24-Parganas and filed in his office under Section 4 of the Bengal Public Demands Recovery Act, 1913 for recovery of the public demands due to the Union of India from the petitioner firm on account of excess profits tax assessed on the petitioner firm for the chargeable accounting periods ending March 31, 1942, March 31, 1943, March 31, 1944 and March 31, 1946. By his orders dated March 29, 1956 the certificate officer directed the entry of the certificates in Register X and the issue of notices under Section 7 of the Act. Notices under Section 7 dated April 16, 1956 were issued and served on the petitioner but upon objection filed under Section 9 the certificate officer by his orders dated December 20, 1956 directed the issue and service of fresh notices under Section 7. Fresh notices dated December 20, 1956 were issued and served on the petitioner. Thereupon the petitioner filed under Section 9 of the Act fresh petitions of objections dated January 27, 1957 and supplementary objections dated February 4, 1957. The certificate officer, Shri D.S.P. Mukherjee dismissed the objections by his order dated January 8, 1958. Appeals preferred by the petitioner under Section 51 were dismissed by the Commissioner, Presidency Division, by his order dated April 18, 1958 and revision petitions preferred by the petitioner under Section 53 were dismissed by the Board of Revenue by its order dated April 21, 1960. The petitioner obtained the present rules on November 28, 1960.
(2.) On behalf of the petitioner it is contended that Shri D.S.P. Mukherjee had no power to hear and dispose of the petition under Section 9 as he was not the successor in office of Shri B.K. Banerjee before whom the petition had been filed. This contention was raised for the first time before the Board of Revenue and the Board rightly rejected the contention on the ground that the plea involved new questions of fact and could not be entertained for the first time in revision.
(3.) The assessments of the excess profits tax were made by the Excess Profits Tax Officer on the partners of the petitioner firm in the firm name and consequently the petitioner firm is shown as the certificate debtor in the certificates issued under Section 4 of the Bengal Public Demands Recovery Act, 1913. On behalf of the petitioner it is contended that the assessments Of excess profits tax could not lawfully be made upon the partners of the petitioner firm in the firm name and that the assessments made and the notices of demand served on the petitioner firm and the certificates issued against them are invalid. There is no substance in this contention. Section 4 of the Excess Profits Tax Act, 1940 charged excess profits tax in respect of any business to which the Act applied. Section 13 provided for issue of notice for assessment upon any person engaged in the business. Sub-section (1) of Section 14 provided for assessment of the tax. Sub-section (2) of Section 14 provided that the tax payable in respect of any chargeable accounting period would be payable by the person carrying on the business in that period. Subsection (3) of Section 14 provided that "where two or more persons were carrying on the business jointly in the chargeable accounting period." the assessment shall be made upon them jointly and, in the case of a partnership, may be made in the partnership name." The assessment of the excess profits tax could therefore be lawfully made upon the partners of the petitioner firm in their firm name. Section 21 of the Excess Profits Tax Act, 1940 provided inter alia that Sections 29, 45 and 46 of the Indian Income Tax Act, 1922 would apply with such modifications, if any, as might be prescribed as if the said provisions were provisions of the Excess Profits Tax Act and referred to excess profits tax instead of income tax. The proviso to Section 21 enacted that "the references in the said provision to the assessee shall be construed as references to a person to whose business this Act applies". By the definition in Section 2(17) of the Act "person" included a Hindu undivided family. It is argued that having regard to the proviso to Section 21 read with Section 2(17) the assessees could only be the individual partners to whose business the Act applied. I cannot accept this contention. This definition in Section 2(17) of the Act did not exclude the wider definition of "person" in Section 3(42) of the General Clauses Act. Where the partners of a firm are liable to be assessed jointly in the partnership name under Section 14(3), the partnership firm is the assessee within the meaning of the proviso to Section 21 of the Excess Profits Tax Act, 1940, and by Sections 29, 45 and 46 of the Indian Income-tax Act, 1922, read with Section 21 of the Excess Profits Tax Act, 1940 the notice of demand of the excess profits tax could be served upon the partnership firm in the firm name and on default of payment by the firm the Excess Profits Tax Officer could forward a requisition to the Collector for realising the demand from the firm. The assessment, the notice of demand, the requisition for the certificates and the certificates in the name of the petitioner firm were therefore lawfully issued.;