H.N. Seth, J.
1. Amar Chand Ojha has filed this petition under Article 226 of the Constitution, seeking to challenge the proceedings for recovery of sales tax for the year 1965-66 assessed on the firm Kani Ram Nand Kishore, from him.
2. During the assessment proceedings the petitioner appeared before the Sales Tax Officer and claimed that be was merely a munim of the firm and not a partner therein. This plea of the petitioner was not accepted and the assessment of the firm Kani Ram Nand Kishore was completed In due course. Thereafter, an appeal was filed before the Assistant Commissioner (Judicial), Sales Tax, Sitapar Range. The Assistant Commissioner allowed the appeal, set aside the assessment order and remanded the case for Investigating and enquiring whether the petitioner was in fact' a partner in the firm or not. On remand the Sales Tax Officer made a fresh' assessment, bat did not record any finding on the question whether the petitioner was a partner la the assessee-firm or not. The department now seeks to recover the amount of tax assessed from the petitioner treating Mm as a partner in the assessee-firm. The petitioner has, therefore, approached this court for relief.
3. It is not disputed that under the U. P, Sales Tax Act, tax assessed on a firm can be recovered from one of the partners. But, before a person can be made liable for the tax as a partner, some one has to find him to be a partner in the assessee-firm. In this case, we find that the appellate authority had remanded the case with the direction that the assessing authority should investigate the question whether the petitioner was a partner in the assessee-firm. However, the Sales Tax Officer proceeded to complete the assessment without recording any finding on that question. In the absence of such a finding, it is not open to the department to treat the petitioner, who has althrough been strenuously disputing the fact that he was partner in the assessee-firm, and to recover the tax assessed from him. The recovery certificate issued against the petitioner, therefore, cannot be sustained.
4. In the result, the petition succeeds and is allowed with costs. The recovery certificate in so far as it seeks to recover the tax assessed on the firm M/s. Kani Ram Nand Kishore for the year 1965-66, from the petitioner treating him as its partner, is quashed.