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TMI Blog1962 (2) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... e omnibus prayer asking the court to issue such other writ or writs or orders or directions as the circumstances of the case may necessitate. Before considering the points urged by Sri K. Srinivasan, the learned counsel for the petitioner, it is necessary to set out the relevant facts. The petitioner was a partner of a firm known as Unni Co . For the assessment year 1953-54 that firm was assessed to an income-tax of ₹ 70,206-10-0. The order of assessment is dated March 15, 1954. The firm appears to have discontinued its business very soon after the assessment order in question was made. Thereafter, the income-tax officer issued a certificate under section 46(2) of the Act and requested the Deputy Commissioner to initiate proceedings to realise the tax due from the partners of the firm. When the Deputy Commissioner was about to move in the matter, one of the partners of the firm, namely, T. Govindaswamy, came up to this court by means of an application under article 226 of the Constitution seeking to restrain the Deputy Commissioner from collecting the arrears of tax due. In that petition (T. Govindaswamy v. Income-tax Officer, Special Survey Circle, Bangalore [1960] 38 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court by clarifying the wording of the section and it is too much to expect, as the learned counsel for the petitioner wants us to do, that the legislature intended to take away from the department a privilege which according to the ruling of the Madras High Court it undoubtedly had under the unamended section. We, therefore, hold that by virtue of section 44 the petitioner, who was undoubtedly a partner of Unni Co. at the time of the discontinuance of its business, is liable under section 44 to pay the tax assessed on the firm before discontinuance. Despite the above conclusion, this court issued the writ prayed for in that case as no notice under section 29 of the Act had been served on the partners. The judgment of this court was rendered on December 5, 1958. Very few days thereafter, the Income-tax Officer issued notices to all the partners under section 29 of the Act requiring them to pay up the tax due from the discontinued firm, Unni Co. It is as against that notice the petitioner, who was one of the partners of that firm, has come up to this court. Sri K. Srinivasan, the learned counsel for the petitioner, formulated four legal contentions in support ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the assessee or other person liable to pay such tax; and (3) the notice of demand must be in the prescribed form. Assessee is defined under section 2(2) of the Act which says: Assessee 'means' 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'. A person against whom proceedings are taken in pursuance of section 44 is also an assessee within the meaning of the definition of that world found in section 2(2). That position is not disputed before us. For the reasons mentioned above, we do not think that there is any force in the contention that the notice of demand served on the petitioner is not based on any order passed by the Income-tax Officer. In support of the above contention of Sri Srinivasan, he cited before us the decision in N.N. Kotak v. Commissioner of Income-tax [1952] 21 I.T.R. 18. We fail to see how this decision helps the contention of Sri Srinivasan. It is laid down in that decision that a notice of demand can only be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such an important provision would have found place in the body of the Act itself indicating that intention. In other sections of the Act we do find that where certain notices have to be given the period within which they have to be given is prescribed. But so far as sec-tion 29 is concerned no period at all is prescribed in the Act. Again it is quite possible that in certain cases no demand could be made within the actual year for which the tax is payable. Provision is made for disputes which may arise as to the acceptance or rejection of the assessee's return. If his return is not accepted then an enquiry takes place, evidence may be demanded of him and much time may be expended in carrying on the enquiry, and it is quite possible that such enquiry would not terminate until after the year of assessment and I do not think it can be suggested that because the ordinary form prescribed for such a demand contemplates that it will be issued during the current year of assessment, it is tantamount to an enactment that it cannot be issued afterwards. If any part of the form should not be applicable to the particular facts of the case then I presume it can be altered in the ordinary cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r view that decision does not lay down the law correctly. When that case, Khemchand's case*, was taken up in appeal to the Judicial Committee, the Judicial Committee observed in Commissioner of Income-tax v. Khemchand, Ramdas [1938] 6 I.T.R. 414 (P.C.) thus: Aston, A.J.C., considered that the demand for super-tax should be made within a reasonable time of the assessment for income-tax, meaning no doubt, by assessment the service of the notice of demand for income-tax which normally completes the assessment. Rupchand Bilaram, A.J.C., was of opinion, that the demand for super-tax should be made within a reasonable time, and therefore, almost simultaneously with the demand for income-tax. Both of them held for this reason (amongst others) that the service of the notice of demand of May 4, 1929, was illegal and inoperative to impose liability upon the respondents. Their Lordships do not find it necessary to express any opinion upon this point inasmuch as in their view and for the reasons which they will now proceed to give it does not call for determination in the present case. Even if we had agreed with the contention that a notice under section 29 should be issued withi ..... 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