1. The question is whether the partners of a registered firm are liable to be proceeded against for recovery of tax assessed on the firm as such under the Income-tax Act 1961 (for short the Act) pursuant to a certificate issued to the Tax Recovery Officer as envisaged by S.222 of the Act. The learned judge before whom this question arose answered it in the negative, allowed the writ application and issued a direction not to enforce Exts. P-1 and P-3 communications sent by the Tax Recovery Officer.

2. In Ext. P-1 addressed to the partners it was stated that "a sum of Rs. 70,763/- is outstanding as arrears towards income-tax, penalty, interest etc. from the firm M/s. Mutual Benefit Corporation, Calicut of which you are a partner ". The three partners who are respondents in this writ appeal protested by Ext. P-2 and contended that the arrears of income-tax due from the firm, M/s. Mutual Benefit Corporation cannot be recovered from the partners. The reply to Ext. P-2 is in Ext. P-3 and it was stated therein:

"As per the provisions of the Partnership Act, the partners are jointly and severally liable to the dues of the firm. This position, in law is not in any way affected by the Income-tax Act, 1961 and therefore your contention that the arrears on account of Income-tax dues of the firm can only be recovered from the firm is not acceptable"

3. The argument before us on behalf of the Revenue also proceeded on the basis of the proposition stated in Ext. P-3. Counsel contended that S.2 (23) of the Act incorporated the meanings attributable to the expressions 'partnership', 'firm' and 'partner' stated in S.4 of the Indian Partnership Act for the purpose of the Act. So it was submitted that S.25 of the Partnership Act which we shall extract immediately must be taken to be a part of the Act.

"25. Every partner is liable, jointly with all the other partners and also severally. for all acts of the firm done while he is a partner."

4. Counsel contended that the assessment order on the firm passed in accordance with the provisions of S.182 (1) of the Act, when that order is read with S.25 of the Indian Partnership Act, imposed a liability on the partners of the firm. If this submission can be accepted, this appeal has to be allowed. But we find it difficult to accept this submission.

5. The question arose before the Supreme Court whether the partners of a firm, which has been as such assessed to income-tax under the Act, can also be said to be liable under the Act for the tax assessed on the firm. The answer to the question was that the liability of the partners arose under S.25 of the Indian Partnership Act and such liability was not a liability which arose under the Act by virtue of the assessment order. We shall extract the relevant passage in the decision in Sahu Rajeshwar Nath v. Income-tax Officer, C-Ward, Meerut, and Another (1969) 72 I. T. R.617.

"But the argument was stressed that the appellant was "other person liable to pay such tax" within the meaning of the language of S.29 of the Act. In our opinion, there is no warrant or justification for this argument. The phrase "other person liable to pay" in S.29 should be construed as "other person liable to pay under the Income-tax Act" and the liability cannot therefore be construed with reference to the Partnership Act or any other statute."

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6. S.29 of the Indian Income-tax Act 1922 which has been referred to in the passage was in these terms:

"When any tax, penalty or interest is due in consequence of any order passed under or in pursuance of this Act, the Income-tax Officer shall serve upon the assessee or other person liable to pay such tax, penalty or interest a notice of demand in the prescribed form specifying the sum so payable."

7. The corresponding provision in the Act is S.156 which also we shall extract.

"156. Notice of demand. When any tax, interest, penalty, fine or any other sum is payable in consequence of any order passed under this Act, th