The right to apply for a reference under Section 66(1) of the Income-tax Act, 1922, is not confined to the party to the appeal before the Tribunal.

1. A firm by the name of Gokaldas Dayalji was assessed to tax as an unregistered firm and Gokaldas, the 4th respondent before us, appealed to the A.A.C. contending that the assessment should have been on himself as an individual and not on the firm, the contention being based on his allegation that the firm was a proprietary firm and not a partner ship firm. The appeal preferred by Gokaldas was dismissed. On the 3rd of March 1948, the property of the petitioner was attached, it appearing that the petitioner was shown as a partner along with Gokaldas and others in a partner ship deed which constituted the firm, and the Income-tax Authorities were proceeding against the petitioner as a partner in that firm. The petitioner thereupon preferred an appeal to the "Tribunal denying his liability to be assessed and contending that he was not a partner in the firm. The Tribunal considered the preliminary question whether the appeal of the petitioner was competent held in his favour. On merits the Tribunal held that the petitioner was not a partner. The Commissioner then made an application for a reference to this Court, and the question of law as suggested was whether there was any evidence before the Tribunal to hold that the petitioner was not a partner . That application of the Commissioner was rejected. Then Gokaldas, the 4th respondent, applied for a reference to the tribunal to refer the question of law as to whether the appeal preferred by the petitioner was competent. The Tribunal granted that application, and the petitioner has come before us under Arts. 226 and 227 of the Constitution urging that it was not competent to the Tribunal in law to make this reference.

2. Now, the provision with regard to the making of the reference is contained in Section 66 and Sub-section (1) of that section provides that within sixty days of the date upon which he is served with notice of an order under Sub-section (4) of Section 33 the assessee or the Commissioner may, by application in the prescribed form, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order, and Mr. Falkhivalas argument is that the assessee contemplated by Section 66 (1) is the assessee who has preferred the appeal before the Tribunal and inasmuch as the 4th respondent preferred no appeal against the order of the Appellate Assistant Commissioner, it was not competent to him to apply for a reference under Section 66(1). The only person who could have applied for a reference was the petitioner, he being the assessee within the meaning of Section 66(1), and he alone having appealed against the order of the A.A.C. "Assessee" is defined in the Act under Section 2(2) as meaning a person by whom income-tax or any other sum of money is payable under this Act and includes every person in respect of whom any proceeding under this Act has been taken for the assessment of his income or of the loss sustained by him or of the amount of refund due to him. Therefore, giving to the expression "as-sessee" in Section 66(1), the meaning ascribed to it by the Act itself, it is clear that any person by whom income-tax or any other sum of money is payable has the right to make an application for a reference.

3. Now, there can be no doubt that the 4th respondent as a partner or as the proprietor of the firm is liable to pay tax assessed upon the firm. What is more, the effect of the judgment of the Tribunal is that whereas by reason of the decision of the A.A.C. income-tax was payable by el! the partner s of the firm, the finding of the Tribunal relieves the petitioner of his liability and to that extent increases the liability of the 4th respondent. It is difficult to understand how the contention can be put forward, as has been done, that because Gokaldas did not appeal to the Tribunal from the decision of the A.A.C., he is debarred from applying for a reference under Section 66(1). Gokaldas accepted the decision of the A.A.C., that the