A partner of an unregistered firm is liable for the tax dues of the firm, and a suit challenging only the certificate proceedings for the recovery of such dues is not maintainable.

( 1 ) MADAR Bux (since deceased), the plaintiff-respondent herein, had instituted a suit against the Union of India and State of West Bengal as defendants in the Subordinate Judge's Court, Asansol, for declaring that the certificate issued and filed under Sections 5 and 6 of the Bengal Public Demands Recovery Act in the Office of the Certificate Officer, Burdwan, in Certificate Case No. 967 of 1948/49 and the proceedings thereunder were without jurisdiction, ultra vires, ab initio null and void and not binding upon the plaintiff. The defendants contested the said suit. The learned subordinate judge, Asansol, decreed the suit declaring that the Certificate Case No. 967 of 1948/49 was without jurisdiction and illegal. The Union of India represented by the Commissioner of Income-tax, West Bengal, has preferred this appeal.

( 2 ) THE learned subordinate judge has rejected the contention of the plaintiff, Sk. Madar Bux, that he had no concern with the firm, M/s. Moula Bux, the assessee. Upon consideration of the facts and circumstances and the evidence on record, the learned subordinate judge concluded that the plaintiff, Sk. Madar Bux, was a partner of the unregistered firm. The certificate had been filed for recovering the income-tax from the said unregistered firm before its dissolution in April, 1946. The learned subordinate judge applied the ratio of the Division Bench decision of this court in R. N. Bose v. Manindra Lal Goswami [1958] 33 ITR 435 (Cal), and held that the said assessment made of its pre-dissolution income in the name of the said unregistered firm was illegal and realisation of the said tax from the plaintiff was also without jurisdiction. The certificate issued under Section 46 (2) of the Indian I. T. Act, 1922, against the plaintiff was also pronounced as illegal by the court below. The learned subordinate judge, for the said reasons, has declared the certificate case to be without jurisdiction.

( 3 ) MR. Pal, appearing on behalf of the appellant, Union of India, has made a four-fold submission before us. The plaintiff's challenge against the aforesaid assessment orders made under the Indian I. T. Act, 1922, was barred under Section 67 of the said Act. According to Mr. Pal, the suit in question was also barred under Section 37 of the Bengal Public Demands Recovery Act. The plaintiff in his plaint did not pray for any relief in respect of the assessment orders made by the ITO, Burdwan. Therefore, he was not entitled to indirectly impugn the said assessment orders by praying for a declaration that the certificate proceeding for the recovery of the said income-tax dues was illegal and without jurisdiction. Lastly, Mr. Pal submitted that the plaintiff was admittedly a partner of the assessee-unregistered firm, Sk. Moula Bux, and, therefore, he was liable under law for income-tax dues in respect of the pre-dissolution period of the said firm.

( 4 ) MR. C. F. Ali, learned advocate for the substituted respondent, has tried to challenge the aforesaid findings by the learned subordinate judge that Sk. Madar Bux had been a partner along with his nephew, Sk. Moula Bux, of the unregistered firm in question until it was dissolved in April, 1946. In our view, there is an overwhelming evidence that the plaintiff, Sk. Madar Bux, and his nephew, Sk. Moula Bux, used to carry on as partners in a contract business for the supply of meat and livestock to the military authorities during the Second World War. The plaintiff himself produced in the trial court his statement dated 24th April, 1946, a translation of which was marked as Ex. 1. He had declared that he had accommodated his nephew, Moula Bux, with him in his own business for nearly 10/12 years as a "working partner". The military contracts which Madar Bux got during the period were opened in the name of his nephew because Madar Bux himself was an illiterate person. In his statement, Madar Bux claimed that he was the owner of the said firm and th