JUDGMENT - CHAGLA, C. J. :

This petition raises a question as to the proper construction of S. 44 of the Income-tax Act. The question comes to be raised under the following circumstances. The petitioner was a partner with three others in the firm of E. Loeffler and Co. which was constituted on 10-6-1947. Among the three other partners was a man by the name of Iyer. This firm was dissolved on 11-9-1950 and the deed of dissolution provided for the business of the firm being continued by Iyer and under that deed Iyer succeeded to the firm and carried on the business of that firm. The firm was a registered firm and it was assessed for the assessment year 1949-50 and the shares of the profits of the four partners were allocated to each one of them under the provisions of the Income-tax Act and each of the partners was! assessed to tax on his share of the profits. The petitioner and the other three partners paid the tax which they were liable to pay in respect of their respective assessments. Iyer failed to do so and the Income-tax Officer served a notice upon the petitioner that the petitioner was liable to pay the lax of Iyer which was in arrears under S. 44 of the Income-tax Act and threatened coercive measures if the petitioner failed to pay the tax. The petitioner has come on this writ contending that the liability of Iyer cannot be imposed upon him and that the threat held out by the Income-tax Officer was not in conformity with law and the Income-tax Officer should be prevented from putting into execution that threat.

(2) What is urged by Mr. Joshi on behalf of the Department is that this is a case which falls within the ambit of S. 44. Mr. Joshi says that, when we look at the marginal note of that section, it says: "Liability in case of discontinued firm or association", and the firm of Loeffler and Co. was discontinued on 11-9-1950 and every partner is jointly and severally liable to assessment and for the amount of tax payable; and therefore, Iyer having failed to pay the tax, the petitioner is jointly and severally liable in respect of that tax. It is true that the original firm of Loeffler and Co. was dissolved and a new entity came into existence. But it is equally true that the business carried on by the old firm was not discontinued, but was carried on by the successor of that firm Iyer. Now, when we look at the section itself, apart from the marginal note, what the section says is :

"where any business, profession or vocation carried on by a firm or association of persons has been discontinued, or where an association of persons is dissolved", then comes

"every person who was at the time of such discontinuance or dissolution a partner of such firm or a member of such association shall", and then comes the liability which is imposed upon him to pay tax jointly and severally with every other partner. Now, the first important aspect of this section which should be noticed is that, when the section refers to a firm, it does not speak of the discontinuance of that firm, but it speaks of the discontinuance of the business of the firm. The distinction between the two expressions is vital. A firm may be discontinued; a firm may be dissolved; a new firm may come into existence in the eye of the law; but the Legislature ignores that change and what it emphasizes is the discontinuance of the business of the firm. In other words, although a new firm may come into existence, if the business of the old firm is not discontinued, but the new firm continues to carry on that business, then S. 44 would have no application, It is clear and obvious that the section cannot be controlled by the marginal note. A Court may only look at the marginal note in order to understand the drift of the section itself. But where the language used in the section is clear, that language cannot possibly be controlled because in the marginal note the Legislature has used a different language. It is also clear that what the Taxing Department is seeking to do is

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