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TMI Blog1989 (11) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be levied on him inasmuch as, though being liable to registration under the Act, he had not done so. The appellant, in reply to the said notice, contended that he had no liability in his personal capacity and the partnership firm of which he is a partner had already been enrolled as an assessee under the Act and, therefore, the payment of professional tax by the firm is to be construed as payment by the partner. He further submitted that a separate demand on an individual partner would not arise inasmuch as the same would result in double taxation which is not contemplated under the Act. The respondent, however, made an order on June 13, 1980, holding that the appellant had liability in two capacities one as an individual under entry 2(c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. Section 3 of the Act is the charging section. Clause (1) thereof provides for levy and collection of tax on professions, trades, callings and employments for the benefit of the State. Sub-section (2) thereof provides that every person who exercises any profession specified in the second column of the Schedule shall be liable to pay tax at the rate mentioned therein. Under the charging section, the levy of tax is upon persons who are enumerated in the Schedule and who are carrying on a profession. Undoubtedly, the definition of the word "person" includes not only natural persons but also body corporates, firms, Hindu undivided families and associations. Thus, a firm also becomes a person liable to be charged to tax under the Act by re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be taxed either under entry 2 or under entry 20 of the Schedule to the Act. But, when he is not carrying on his profession as an individual but only as a member of the firm, then entry 20 is attracted. If he is carrying on his profession as a partner of a firm and that is to be taxed, there is no separate provision attracting tax under the Act, as it stood then. Whatever may be the definition of the term "person", which includes artificial persons such as firms, etc., it does not create any charge in respect of a firm as well as a partner of that firm and the charging section covers only persons enumerated in the Second Schedule which specifically provides for levy of tax on firms carrying on a profession. Therefore, it is clear that un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x under the Act is only the firm and not the partner. For this proposition, we derive support from the decision of the Supreme Court in Jain Bros. v. Union of India [1970] 77 ITR 107 ; AIR 1970 SC 778. That, unless specific provisions are made and clear intention is set out in the Act resulting in double taxation, by inference, such a result cannot be achieved at all. Explanation I to the Schedule to the Act itself provides for a rule against double taxation. The principle in that regard is that, when a profession carried on by one entity is the subject-matter of tax, the same cannot be subjected to tax in the hands of the same person in another capacity. Thus, if a firm is taxed in respect of its profession, the same profession cannot be b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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