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P.P. Kannaiah Chetty Vs. Income-tax Officer and anr. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberWrit Petition No. 1772 of 1971
Judge
Reported in[1976]105ITR622(Mad)
ActsIncome Tax Act, 1961 - Sections 226(3)
AppellantP.P. Kannaiah Chetty
Respondentincome-tax Officer and anr.
Appellant AdvocateV. Ramachandran, Adv.
Respondent AdvocateV. Balasubrahmanyan and ;J. Jayaraman, Advs.
Cases ReferredOfficer v. M. Damodar Bhat
Excerpt:
- .....several, we are unable to accept the contention of the learned counsel for the petitioner that the notice issued against the partnership firm is not enough for proceeding against the garnishee. in fact, in sahu rajeshwar nath v. income-tax officer, : [1969]72itr617(sc) the supreme court considered a similar question and held that where an unregistered firm is assessed to income-tax and a notice of demand is issued against that firm, it is not necessary to serve a separate notice of demand under section 29 of the indian income-tax act, 1922, upon a partner of the firm if the tax assessed against the firm is sought to be recovered from the partner in proceedings under section 46(2). further, the writ petition is filed only against the garnishee order issued against the cement marketing.....
Judgment:

V. Ramaswami, J.

1. The petitioner was a partner in a firm of partnership called Messrs. Pattu Padmanabha Chetti and Sons. The partnership firm was assessed to income-tax for the assessment years 1964-65 and 1965-66 and income-tax to the tune of Rs. 3,43,195 was due from the partnership firm. The firm was an unregistered partnership and there is no dispute that the petitioner was a partner. This writ petition has been filedagainst the garnishee order issued by the Tax Recovery Officer to the Cement Marketing Company of India restraining them from paying any amount due to the petitioner from the company until further orders.

2. The learned counsel for the petitioner contended that the income-tax was due only from the partnership firm, that he had not been given any separate notice demanding payment of the tax due and that therefore, the garnishee order issued against the Cement Marketing Company of India is illegal. The petitioner does not dispute that the notice of demand was issued against the firm. The partnership being unregistered and the liability of the partners being joint and several, we are unable to accept the contention of the learned counsel for the petitioner that the notice issued against the partnership firm is not enough for proceeding against the garnishee. In fact, in Sahu Rajeshwar Nath v. Income-tax Officer, : [1969]72ITR617(SC) the Supreme Court considered a similar question and held that where an unregistered firm is assessed to income-tax and a notice of demand is issued against that firm, it is not necessary to serve a separate notice of demand under Section 29 of the Indian Income-tax Act, 1922, upon a partner of the firm if the tax assessed against the firm is sought to be recovered from the partner in proceedings under Section 46(2). Further, the writ petition is filed only against the garnishee order issued against the Cement Marketing Company of India restraining them from paying any amount due to the petitioner. In order to issue a garnishee order, it is not necessary that the person from whom the tax is due in respect of which the garnishee order is issued be a defaulter within the meaning of Section 46 of the Indian Income-tax Act, 1922, or the corresponding provision of the Income-tax Act, 1961. This question also is not res integra but it is covered by authority. In Third Income-tax Officer v. M. Damodar Bhat, : [1969]71ITR806(SC) before the time given for payment of the income-tax expired, the Income-tax Officer issued a garnishee order on a third party under Section 226(3) of the Income-tax Act, 1961, It was contended that before a notice under Section 226(3) was issued, a demand notice should have been issued on the assessee and the assessee had to be in default. Overruling this contention, the Supreme Court held that the notice issued to the third party under Section 226(3) was legally and validly issued.

3. In the circumstances, there are no merits in this petition and it is liable to be dismissed. The writ petition is accordingly dismissed and the rule nisi is discharged. The respondents will be entitled to costs which we fix at Rs. 250.


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