Somnath Iyer, J.
1. For the assessment year 1952-53, the Income-tax Officer, Kolar Circle, made an assessment on March 26, 1957, in respect of the income of a Hindu undivided family consisting of the petitioner in W.P. No. 322 of 1959 and his son who is the petitioner in W.P. No. 323 of 1959. The tax payable by the family was determined as Rs. 54,067-5-0.
2. But, in the meanwhile, according to the petitioners, on March 28, 1956, there was a partition of a part of the family assets, viz., the movables. On the basis of that incomplete partition, an application had been made by the petitioners for a record of that partition under section 25A(1) of the Income-tax Act. Not unnaturally, on the ground that the partition was an incomplete partition, the Income-tax Officer declined to make that record and proceeded to make the assessment for the year 1952-53 as if the family was still undivided.
3. After the assessment was made in that way, on March 29, 1957, according to the petitioners, there was a further partition of the immovable properties belonging to the family by a registered instrument. So it was that the petitioners made a second application for an order under section 25A(1) for the very order which had been refused by the Income-tax Officer on the earlier occasion. But, here again, the petitioners were met with the difficulty that the immovable properties partitioned on March 29, 1957, did not constitute the entire immovable properties of the family since some of the properties which were left out of such partition were the subject-matter of some litigation, and, therefore, had been excluded from partition.
4. The position, therefore, is that until today, for the purpose of the Income-tax Act, the petitioners' family has to be regarded as a Hindu undivided family.
5. In an appeal which was preferred by the petitioners to the Appellate Assistant Commissioner from the assessment made by the Income-tax Officer for the assessment year 1952-53, the petitioners were unable to obtain any relief, but in the further appeal which they preferred to the Income-tax Appellate Tribunal they were able to get the tax payable reduced to Rs. 29,087-11-0.
6. But, in the meanwhile, under section 29 of the Income-tax Act, a notice of demand had been made by the Income-tax Officer to the petitioner in W.P. No. 322 of 1959 in his capacity as a karta of the Hindu undivided family demanding the payment of the sum of Rs. 54,067-5-0 which was the tax which was determined to be paid by him before it was reduced by the Income-tax Appellate Tribunal. On the family committing default in the payment of this amount, the Income-tax Officer forwarded to the concerned Deputy Commissioner a certificate under section 46(2) specifying the amount of arrears due from the family in order that the Collector might proceed to recover the tax due from the family as if it were an arrear of land revenue. After the receipt of this certificate the movable and immovable properties of the petitioners were attached under the provisions of the Mysore Land Revenue Code by the revenue authorities so that they might be sold for the recovery of the tax due from the family. The attachment was made on April 18, 1959.
7. After the reduction of the tax payable by the family by the order made by the Income-tax Appellate Tribunal on May 16, 1960, the Income-tax Officer issued a fresh demand notice on December 19, 1960, to the family represented by its karta demanding the payment of the smaller sum of money payable by way of tax. Even the reduced tax was not paid by the family in full, and the non-payment of this amount was defended on the ground that there was a stay issued by this court in these proceedings. The Income-tax Officer, however, intimated the revenue authorities that the amount to be recovered from the family under section 46(2) by the revenue process was Rs. 23,506 which was the amount still outstanding.
8. But, in the meanwhile, these two applications had been presented to this court on May 7, 1959, even before the Income-tax Appellate Tribunal had decided the appeal presented by the family. In these applications the petitioners ask us to quash the proceedings initiate by the Income-tax Officer under section 46(2) of the Act for the recovery of the tax and to restrain the revenue authorities from proceeding with the recovery.
9. The first submission made in support of these application was that although there was an incomplete partition on March 28, 1956, on the first occasion and again on March 29, 1957, there was on the date on which the properties of the petitioners were attached by the revenue authorities no family property in their hands which alone had to be proceeded against for the recovery of the tax due from the family.
10. The orders made by the Income-tax Officer under section 25A on the two occasions to which I have referred are not assailed before us, and we have been informed by Mr. Srinivasan that that matter is the subject-matter of a reference made under section 66(1) of the Income-tax Act. He has, however, based his submissions on the assumption that the orders were rightly made under section 25A(1).
11. The argument advanced before us is that even if the family has to be regarded for the purpose of the Income-tax Act to be an undivided family by reason of there being no complete partition in the year 1956, and in the year 1957 and even though for that reason it was possible for the Income-tax Officer on March 26, 1957, to assess the income of the family as if it was family income and as if the family was undivided on the date of that assessment, the tax payable by the family could not be recovered from the properties of the petitioners which on the date of their attachment were the separate properties of the petitioners having fallen to their shares in the partitions made in 1956 and 1957. The only property which could be proceeded under section 46(2), according to Mr. Srinivasan, is what is still family property not forming the subject-matter of a partition whether complete or incomplete till now, and it is urged that none of the properties now attached by the revenue authorities is such family property.
12. Section 25A(1) of the Income-tax Act requires an Income-tax Officer, if joint family property has been partitioned among the various members or groups of members in definite portions, to record an order to that effect. The reason why the Income-tax Officer declined to make a record to that effect was that the entire joint family property in these cases had not been partitioned between the petitioners. Under the scheme of the Income-tax Act in that situation what was taxable in respect of the assessment year 1952-53 was the family income in the hands of the family consisting of the petitioner and his son which had not become divided since there was no partition of the entire property of that family in definite portions.
13. The question, however, remains whether if in spite of there being no complete partition between the petitioners, certain properties belonging to the family of which they were members were nevertheless partitioned and they were allotted to their respective shares, those properties can be proceeded against under section 46(2) as if they were family properties in the hands of the petitioners.
14. It is not necessary for us to examine in these cases whether if a family has become divided after an order of assessment has been made and that partition is recorded under section 25A(1) the tax payable by the family in respect of its income relating to the relevant assessment year can be recovered from the self-acquisitions of the members of the family which has committed default in the payment the tax determined to be payable.
15. But what we have to decide is if there is a partition recognised by the Hindu law, viz., an incomplete partition, but which the Income-tax Act does not recognise and if in that incomplete partition joint family property has been partitioned between its members, whether the properties allotted to the individual members of that family can be sold after such partition by the revenue authorities for the recovery of the tax payable by the family in respect of the income of the family derived by it before such partition.
16. It is clear that in the case of a Hindu undivided family, the family is the legal entity which can be regarded as the assessee. The income which may be taxed is the income in the hands of the family and not the income which may have been received by the individual members of the family and in their hands. The family is the unit of assessment and if that family is the assessee and it is determined that that family has to pay a certain sum of money by way of tax, the recovery of that tax after the required notice of demand is issued under section 29 has also to be made from the family since the family is a legal entity which has no physical existence the only persons from which the tax could be recovered being the persons of which the family consists. Mr. Srinivasan does not dispute that in those circumstances ordinarily each member of the family would be liable to pay the tax due from the family and, therefore, liable to be proceeded against for its recovery by the attachment and sale of family property in the hands of each one of those individual members.
17. But what Mr. Srinivasan does dispute is that if some time before the recovery proceedings commenced and attachment is made under the revenue law, part of the family property has been fact divided between the members of the family, the property which has fallen to the share of the individual members of the family would be immune from the revenue process for the recovery of tax since by the time the recovery proceeding has commenced the property which has fallen to the shares of the individual members has ceased to be the family property and has become transformed into the separate property of its members. That according to Mr. Srinivasan would be the position notwithstanding the fact that the partition is no partition for the purpose of section 25A(1).
18. It is the correctness of these contentions which requires investigation. Now it is a firmly established principle of Hindu law that if a debt is payable by a family and after the family has incurred the liability to pay that debt a partition takes place between its members in which, however, no provision is made for the payment of the debt due by it, the creditor who is entitled to recover the debt can proceed to recover it from every one of the members of the erstwhile Hindu joint family to the extent of the family property in the hands of those individual members. The individual members of a Hindu joint family cannot escape from that liability by making a partition as between themselves of the family property. That partition is one which the creditor can ignore and he can proceed to recover the debt due from each individual member even after partition provided he does not seek to recover the debt from property other than what was family property which has since been partitioned.
19. That is the principle which was authoritatively enunciated by their Lordships of the Supreme Court in Pannalal v. Mst. Naraini. That was a case in which the question which arose was about the liability of a son to pay the pre-partition debt of his father after there was a partition between the members of the family. After referring to the various divergent views expressed by the various High Courts of this country, their Lordships pointed out that the preponderance of the weight of authority was in favour of the view that a son's pious obligation to pay the debt of his father did not come to an end by reason of a partition between the son and the father.
20. Their Lordships however referred with approval to a Full Bench decision of the High Court of Allahabad in Bankey Lal v. Durga Prasad in which it was held that, 'Where a simple money debt binding on the entire family remains unpaid and the members of the family enter into a partition without making any provision for the payment of the family debt the creditor may enforce of his debt by proceeding against properties received by partition by the several members of the family.'
21. Mr. Srinivasan appearing on behalf of the petitioners does not contest the correctness of this proposition. Indeed, the declaration of the law by their Lordships of the Supreme Court makes it impossible for him to do anything else.
22. But what he urged very strongly before us is that that principal of Hindu law is inapplicable to a case where a liability is created by the Income-tax Act which is regulated by the special provisions contained in it to the exclusion of the general principles of Hindu law.
23. Mr. Srinivasan's argument was that although the Income-tax Act directs that the assessee in the case of a Hindu undivided family is the family itself and it is that family which should be assessed and becomes liable for payment of the tax determined to be payable and although the Act makes elaborate provisions as to by whom and in what proportion the tax so determined to be payable should be paid if an order is made under section 25A(1) that the entire joint family property has been partitioned in definite portions, the Act contains no provision for the recovery of such tax from the property which has fallen to the share of the individual members in an incomplete partition which is no partition for the purpose of the Income-tax Act.
24. He has drawn our attention to section 25A(2) which declares that if a partition is recognised by an order made under section 25A(1) the tax payable by the family in respect of the family income has to be apportioned between the quandum members of the family although they shall be jointly and severally liable to pay the entire tax.
25. It is contended that section 25A and 14 of the Income-tax Act are complete and exhaustive codes on the subject of recovery of tax due from a Hindu undivided family and that we should not import the Income-tax Act any provisions other than those contained in the Act itself.
26. The argument advanced is that the Income-tax Act itself does not state from whom the tax is recoverable if the tax is payable by the family and that the only provision which the Act contains in that regard is what is contained in section 25A(2) which says that if a partition takes place and is recognised by the Income-tax Officer the tax is payable in the proportions specified in that sub-section (2) although the members of the family continue to be jointly and severally liable for the tax assessed. In other words, the argument was that there was a joint and several liability of the members of the family only if there was a partition recognised under section 25A(1) and if there is no order made under section 25A(1) there would be no joint and several liability of the members of the family.
27. The acceptance of this argument would, in my opinion, lead to the curious result that the members of the Hindu undivided family would be jointly and severally liable to pay the tax due from the family only if there is a partition made between them and that if no partition is made there is no such joint and several liability. An argument leading to such an anomalous consequence has only to be stated, in my opinion, to be discarded.
28. There is no reason why, in my opinion, we should think that when the Income-tax Act required a Hindu undivided family to be made the unit of assessment so that the family income might be assessed in order that the tax payable by it may be recovered from the family, it intended to exclude the application of the general principles of Hindu law by which the determination of the liability of the members of a Hindu family to pay a debt binding on the family should be made. It was only by way of abundant caution that section 25A(2) was introduced into the Income-tax Act to exclude an argument that once a partition is recorded under section 25A(1) the members of the family between whom there was a partition ceased to be jointly and severally liable to pay the tax due in respect of the family income received by them when it was undivided.
29. As pointed out by their Lordships of the Supreme Court in Lakhmichand Baijnath v. Commissioner of Income-tax section 25A was enacted for removing a defect which the working of the Act had disclosed. Under the provisions of the Act as they stood before its amendment, if at the time of assessment the family had become divided it was not permissible for the Income-tax Officer to make an assessment at all since the legal entity which could be assessed was the family and that entity had ceased to exist. Section 14(1) of the Act prohibited the assessment of income received by an individual member of a Hindu undivided family in his hands. The position, therefore, was that neither the family nor the individual member of the family could be assessed. It was to overcome this defect that section 25A was enacted, and their Lordships pointed this out at page 421 of the judgment observing :
'The question as to what the income of the family assessable to tax under section 23(3) was would be foreign to the scope of an enquiry under section 25A. That section was, it should be noted, introduced by the Indian Income-tax (Amendment) Act, 1928 (3 of 1928), for removing a defect which the working of the Act as enacted in 1922 had disclosed. Under the provisions of the Act as they stood prior to the amendment, when the assessee was an undivided family, no assessment could be made thereon if at the time of the assessment it had become divided, because at that point of time, there was no undivided family in existence which could be taxed, though when the income was received in the year of account the family was joint. Nor could the individual members of the family be taxed in respect of such income as the same is exempt from tax under section 14(1) of the Act. The result of these provisions was that a joint family which had become divided at the time of the assessment escaped tax altogether. To remove this defect, section 25A enacted that until an order is made under that section, the family should be deemed to continue as an undivided family. When an order is made under that section, its effect is that while the tax payable on the total income is apportioned among the divided members or groups, all of them are liable for the tax payable on the total income of the family.'
30. It cannot, therefore, be urged that section 25A(2) which was enacted for the purpose of filling up a lacuna is a special or exhaustive provision on the question of recovery of tax from a family which, after the relevant assessment year, has become divided, nor can it be said that by the enactment of section 25A(2) it was intended that the general liability of the members of a Hindu joint family created by the Hindu law should no longer be enforceable.
31. It should be remembered that while the charging sections of an enactment like the Income-tax Act should be so interpreted that if there is a doubt on the question whether a tax is exigible or not that doubt should be resolved in favour of the taxpayer, the machinery sections which provide for the recovery of the tax which is charged by the Income-tax Act have to be interpreted to make the provisions of the Act effectual and operative. Tested by this principle, the argument advanced by Mr. Srinivasan leading as it does to the result that if the members of a Hindu undivided family make a partition, complete or incomplete, after the assessment year but before the order of assessment, neither the members of that family who have become partitioned nor the properties which have become the subject of partition could be proceeded against for the recovery of the tax charged by the Income-tax Act, is not one which can merit acceptance.
32. In my opinion, if the income of the family in respect of a particular year is assessed, the tax payable in respect of such income can be recovered from the family and from the family properties in the hands of any of its members although between the date of the assessment or recovery and the date of the termination of the assessment year there has been a partition in the course of which family properties have been divided.
33. But Mr. Srinivasan depended strongly on the pronouncement of their Lordships of the Privy Council in Sri Sundar Singh Majithia v. Commissioner of Income-tax in which, according to the petitioner, what was decided was that even if a partition was incomplete and, therefore, could not be recorded under section 25A(1) of the Income-tax Act, the properties which were allotted to the shares of the members of the family at such incomplete partition would become the separate properties of those individual members so that the income from those properties would no longer be taxable as family income. It was on this pronouncement that the argument was constructed that on and from March 28, 1956, and March 29, 1957, the properties which respectively fell to the shares of the petitioners became their separate properties and ceased to be the properties of the family preventing the revenue authorities from proceeding against them as if they were family properties.
34. It is true their Lordships of the Privy Council did state that although a partition may not be a partition for the purpose of section 25A(1) partition would not prevent the assets or the properties of a family getting reduced by reason of such incomplete partition. The view expressed by their Lordships was that such partition would not prevent a property of a family ceasing to be a property of the family after such partition. It was on the basis of this view that the argument was advanced that the properties now attached by the revenue authorities ceased to be the properties of the joint family the moment they were made the subject-matter of the partition in the years 1956 and 1957 and could no longer be treated as family properties which alone could be proceeded against for the recovery of tax due from the family.
35. I am unable to understand the pronouncement of their Lordships of the Privy Council in the manner in which Mr. Srinivasan asks me to understand it. It may be that the result of the partition made in the years 1956 and 1957 was that certain properties were no longer the properties of the joint family which for the purpose of the Income-tax Act continues to exist. But to say that is not the same thing as saying that those properties which ceased to be the joint family properties, even if Mr. Srinivasan is right, are not properties which can be sold by the revenue authorities for the recovery of the tax as if it were an arrear of land revenue. The only effect of the pronouncement of their Lordships of the Privy Council is that the income from the properties which formed the subject-matter of an incomplete partition would no longer be family income liable to be assessed as such. That pronouncement does not discuss the question whether if there was an antecedent liability of the family to pay tax due in respect of what was admittedly family income, that liability is unenforceable by the attachment and sale of the properties which were partitioned. A situation like that is not covered by the pronouncement of their Lordships of the Privy Council.
36. The principle applicable to this case is what I have already mentioned, viz., the principle of Hindu law authoritatively expounded by their Lordships of the Supreme Court which, in my opinion, is equally applicable to a case where the liability does not arise out of the pious obligation of a son to pay the debts of his father but a liability which exists by reason of the debt being one which all the members of the family before it became divided were liable to discharge. The income-tax payable by the family in these cases, it cannot be disputed, was one which all the members of the family were bound to pay and it would have been open to the karta of the family to create a mortgage or a charge on the family properties for the purpose of discharging that debt when it became due. To suggest that that liability could be made to disappear by an arrangement between the members of a family such as a partition would be to strike at the foundation of well recognised principles which have throughout been accepted as applicable to cases of this description.
37. In Prahlad Rai Bairoliya v. Union of India, their Lordships of the High Court of Patna pointed out that while for the recovery of the tax due from a Hindu undivided family a junior member of that family cannot be arrested or detained in jail, it was indisputable that the tax payable by the family can be realised by attachment and sale of the assets of that family though its assets or any part of it may be at that time in he hands of the junior members of that Hindu undivided family. At page 683 of the report this is what Ahmed J. observed :
'If, therefore, the certificate debtor is not a natural being but a legal entity, the execution by arrest and detention in prison cannot be enforced against such a person, there being no physical body in a legal entity, unless there is a provision made in law that some other natural being shall be as much liable for the dues against a particular legal entity as for the dues against himself in which case such a mode of execution may be enforced against the body of that person for the realisation of the due against that legal entity. It is clear that under the law, as it stands, such a situation cannot arise in the case of junior members of a Hindu undivided family when the assessment is against the latter as such. That being so, the assessment made against a Hindu undivided family under the Income-tax Act or under the Bihar Sales Tax Act cannot be enforced against the junior members of that family by their arrest and detention in prison. It follows from it that if the debtor is the Hindu undivided family, the debt against it can be realised normally only by a mode other than one by arrest and detention in prison; for example, it may be realised by attachment and sale or by sale alone of the assets of that family though its assets or any part of it may be at that time in the hands of the junior members of that Hindu undivided family.'
38. I am, therefore, of opinion that it was permissible for the revenue authorities in these cases to attach the movable and immovable properties in the hands of the petitioners for the recovery of the tax due from the family whose income was assessed, particularly since it is not disputed in the affidavits produced by the petitioners in these cases that these properties were the family properties when they were partitioned in the years 1956 and 1957.
39. The contention next urged that after partition in the family of the petitioners no notice of demand could have been issued by the Income-tax Officer under section 29 and that no certificate in pursuance of that notice of demand could have been forwarded to the Deputy Commissioner under section 46(2) of the Act is so plainly unsustainable that it must fall to the ground.
40. It is however urged that even so since according to the petitioners there was a partition although incomplete once in the year 1956 and again in the year 1957, between the petitioners, it was necessary for the Income-tax Officer to send individual notices to both the petitioners since without such notice the tax payable by the family would not become a debt recoverable under section 46(2) of the Act.
41. This argument, in my opinion, is on very shaky foundation. It is admitted that once, before the Income-tax Appellate Tribunal decided the appeal, and, again, after the decision in that appeal the Income-tax Officer did issue under section 29 demand notices to the petitioner in W.P. No. 322 of 1959, treating him as the karta of the family which still continued undivided.
42. Mr. Srinivasan's contention was that even in the case of the petitioner in W.P. No. 322 of 1959 it was not enough for the Income-tax Officer to issue a notice in his capacity as the karta but that it was also further necessary for the Income-tax Officer to issue another notice to him after the decision of the Income-tax Appellate Tribunal appeal treating him as a member of a Hindu family which had since become divided.
43. It is clear that this argument is devoid of merit. If the partition, which was made in 1956 and 1957, was no partition for the purpose of the Income-tax Act and if, therefore, the petitioners must be regarded as members of a Hindu undivided family for the purpose of that Act, it is not easy to understand why and for what reason the Income-tax Officer should treat the petitioners as members of a family which had become disrupted and again issue notices to both of them and why we should think that although for the purpose of the Income-tax Act the family is still undivided they should be regarded as divided members and individual notices sent to them.
44. If the petitioner in W.P. No. 322 of 1959 is the karta of the family which is still undivided for the purpose of the Act, a notice of demand issued under section 29 to him would be a good notice. If after the issue of that notice the tax is not paid, the family would become a defaulter and all the members of the family would be liable to be proceeded against under section 46(2) to the extent of the family assets in their hands, and it becomes unnecessary for the Income-tax Officer to issue notices to each one of them individually. It was, therefore, quite unnecessary in these cases for the Income-tax Officer to issue one more notice to the petitioner in W.P. No. 322 of 1959 or to issue, in addition to the notices issued to the karta, another notice to another member of the family, viz., the petitioner in W.P. No. 323 of 1959.
45. The last attempt made by Mr. Srinivasan to stop the recovery proceedings was to urge that the omission on the part of the Income-tax Officer to forward a fresh certificate under section 46(2) after the modification of the order of assessment by the Income-tax Appellate Tribunal invalidated the entire recovery proceedings commenced by the revenue authorities under section 46(2).
46. It is not disputed that after the decision of the appeal by the Income- tax Appellate Tribunal a fresh demand notice was issued under section 29 demanding the payment of the smaller sum of money required to be paid by way of tax. It is also not disputed that that sum of money which remained outstanding was not paid and that, therefore, the family had become a defaulter.
47. But what is urged is that after the family became such defaulter, it was necessary for the Income-tax Officer to again forward under section 46(2) to the concerned Deputy Commissioner another certificate specifying a smaller sum of money as the amount to be recovered by way of tax.
48. Mr. Srinivasan, however, does not dispute that although a formal certificate was not forwarded under section 46(2), the Income-tax Officer did intimate the concerned Deputy Commissioner that what was recoverable under section 46(2) as an arrear of land revenue was not the sum of Rs. 54,067-5-0 but the smaller sum of Rs. 23,506 out of the sum of Rs. 29,087-11-0 determined as the tax payable by the Income-tax Appellate Tribunal. It is, therefore, clear that the Deputy Commissioner was informed by a communication forwarded to him by the concerned Income-tax Officer that the tax payable by the assessee had undergone a diminution by reason of the order made by the Income-tax Appellate Tribunal in appeal.
49. The object of the insistence on a certificate required to be forwarded under section 46(2) of the Act, in my opinion, is that there should be an authoritative intimation to the Deputy Commissioner that a particular sum of money is due from an assessee and still outstanding. Section 46(2) does not require that the certificate should be forwarded to the Deputy Commissioner in any particular form. It does not require that the certificate should be in any particular formula. Mr. Srinivasan does not dispute that the certificate originally forwarded after the Income-tax Officer made his own assessment was a good certificate. All that was necessary for the Income-tax Officer to do after the Income-tax Appellate Tribunal reduced the tax was to inform the Deputy Commissioner by means of another certificate that the tax payable was less than what originally had been specified. If that has been done as was done by the Income-tax Officer in these cases, it seems to me that there was substantial compliance with the requirement of section 46(2) by the Income-tax Officer.
50. One more contention urged by Mr. Srinivasan was that there was no notice of demand issued by the Tahsildar before he attached the properties of the petitioners.
51. But when Mr. Government Pleader pointed out to Mr. Srinivasan that such demand notice was in fact issued but was served by affixment on the residence of the petitioners since they were not available, Mr. Srinivasan stated that he would not press that contention.
52. In my opinion, these applications must fail. They are accordingly dismissed.
53. In the circumstances there will be no order as to costs.
54. I agree.
55. Application dismissed.