Srinivasa Iyengar, J.
1. The petitioner is challenging the notice styled as 'Notice of demand of defaulter' under r. 2 of the Second Schedule to the I.T. Act, 1961, dated August 8, 1975, issued by the TRO, Bangalore, as being without jurisdiction. The notice is addressed to the petitioner who is a resident of Tirupur and states that a certificate No. FN. 3890 dated July 31, 1975, has been forwarded to him by the ITO, Central Circle-II, Bangalore, for the recovery of an amount of Rs. 96,710, being arrears of income-tax due by M/s. Rajalakshmi Textiles. The notice further stated that in default of payment steps would be taken in accordance with the Second Schedule to the I.T. Act, 1961.
2. The facts are not in dispute. M/s. Rajalakshmi Textiles was a registered firm and had been assessed to income-tax for the assessment year 1962-63 and 1963-64 in the status of a registered firm. Against the order of assessment, an appeal had been filed to the AAC of Income-tax and during the pendency of that appeal, the certificate had been issued by the ITO, Central Circle-II, Bangalore, for recovery of the amount due by virtue of the original assessment orders.
3. The contention for the petitioner is that he was not the assessee, that not notice of demand of any tax payable had been issued to him consequent on such assessment, that he could not be considered as an assessed in default and a certificate could not be issued against him. It is also contended that the certificate had not been issued in his name and could not be so issued. Reliance is placed on the decision of this court in P. Balchand v. TRO : 95ITR321(KAR) and the further judgment on appeal therefrom in Writ Appeal No. 22 of 1974 dated January 20, 1975 [TRO v. P. Balchand : 121ITR871(KAR) infra]. Though the petitioner stated in the writ petition that he was not aware as to in whose name the certificate had been issued, Shri Rajasekhara Murthy has made available the relevant file and it is seen that the certificate issued under s. 222 of the I.T. Act, 1961, dated July 31, 1975, mentions the amount as due from M/s. Rajalakshmi Textiles and it is also added 'by partners, (1) V. T. Surappa, (2) S. N. Shanthalingam'. The opening words are as follows :
'This is to certify that a sum of Rs. 59,660 which is due from M/s, Rajalakshmi Textiles, resident of Bangalore, by partners, (1) Sri V. T. Surappa, (2) Sri. S. N. Shanthalingam in the status of RF on account of income-tax, etc., as per details on the reverse is in arrear. With reference to the provisions of section 222 of the Income-tax Act, 1961, you are hereby requested to recover the same in accordance with the provisions of the said section, Second Schedule to the said Act, and the rules made thereunder.'
4. Two certificates have been issued in relation to two assessment years and are addressed to the TRO, Bangalore. It is, therefore, clear that the defaulter mentioned in the certificates was the assessee, namely, M/s. Rajalakshmi Textiles, the firm. This is in accordance with the definition in clause 1 of the Second Schedule to the Act, where 'defaulter' is defined as meaning the assessee mentioned in the certificate. Under similar circumstances this court held in P. Balchand v. TRO : 95ITR321(KAR) that it could not be enforced against a person who was not named in the certificate merely on the ground that he was a partner.
5. Shri Rajasekhara Murthy, learned counsel for the respondent, however, submitted that the name of the petitioner is also to be found in the certificate. The name is mentioned not as defaulter meaning thereby the assessee who was in default, but only that the firm consisted of two partners who were named there. This could not be construed as the certificate issued against an assessee. In the appeal against the decision reported in P. Balchand v. TRO : 95ITR321(KAR) reference was made to r. 32 in the Second Schedule under which property of a person, who is a partner and who is a defaulter, could be attached. The expression 'defaulter' was defined under r. 1 of the Second Schedule. The Bench proceeded to state (See infra p. 872) :
'The term 'defaulter' means the assessee mentioned in the certificate. The expression 'assessee in default' is also defined under the Act. Section 220 provides that when any amount, otherwise than by way of advance tax, specified as payable in a notice of demand under section 156 is not paid within the time prescribed, the person to whom the notice of demand is issued shall be the assessee in default. Section 156 provides that when any tax, interest, penalty or fine or any other sum is payable in consequence of any order passed under the Act, the Income-tax Officer shall serve upon the assessee a notice of demand in the prescribed form specifying the sum so payable. It is, therefore, clear that the assessee who becomes a defaulter is the person to whom a notice of demand is the prescribed form is issued.'
6. The scheme of the Act is that there should first be an assessment. A notice of demand should be served on the assessee in regard to whom assessment is made and if default is made in payment of the amount demanded then such assessee would become an assessee in default. It is thereafter that proceedings for recovery by the issue of a certificates can be initiated. The primary thing is that the assessment must be against a person who is ultimately sought to be proceeded against and notice of demand should have been served on him consequent on such assessment. The instant case does not satisfy this requirement. In Writ Appeal No. 22 of 1974 [TRO v. P. Balchand : 121ITR871(KAR) (infra)] this court also noticed the decision of the High Court of Andhra Pradesh in Kethmal Parekh v. TRO : 87ITR101(AP) in support of its view. It is also seen that the decision reported in : 95ITR321(KAR) (P. Balchand v. TRO) has been followed by the High Court of Kerala in the case of C. V. George v. ITO : 102ITR724(Ker) .
7. For the reasons stated above, the proceedings taken for recovery of the amount against the petitioner are clearly not warranted by law. Accordingly, the rule is made absolute and the notice of demand, Ex. 'C', is quashed. No costs.