Recovery under S.25 of the Kerala General Sales-tax Act, 1963 can be made only against the dealer and not against a partner of a firm which is the dealer.

1. A penniless partner of a firm whose business collapsed somewhere in 1965 figures as the petitioner in this original petition. The petitioner Ali Koya Haji who once did flourishing business is hill produce is now working as a copra purchase clerk in the firm M/s. Kanji Morarji, Produce Dealers, Copra Bazar, Calicut on a salary of Rs. 150/- per month. After deducting Rs. 12/-towards Provident Fund the petitioner gets Rs. 138/-per month and with that amount he is trying to keep his body and soul together in the evenings, of his life. From the firm M/s V. V. Alikoya Haji a sum of Rs. 2,34,448.77 is due to the sales-tax Department for the years 1963-64,1964-65 and 1965-66 by way of Sales-tax and surcharge The firm, which was the dealer under the Kerala General Sales-tax Act, 1963, for short the Act, it seems, has no assets. The Ist respondent-Assistant Commissioner of Sales-tax (Assessment), Sales-tax Office, Special Circle II, Kozhikode issued notice No. A 15/65-66 in Form No. 16 dated 15-5-1974 under S.25 of the Act to the firm M/s. Kanji Morarji directing them to pay to him the salary due to the petitioner as the petitioner was in arrears of sales-tax. On receipt of the said notice the firm sent a reply Ext. P-2 dated 10-6 -1974 requesting the 1st respondent to withdraw the notice and allow them to pay to the petitioner his salary for the month of May t974. On coming to know of the above notice, the petitioner also made Ext. P-1 representation dated 2 71974 to the 1st respondent. As the above representation was not acted upon, the

petitioner has approached this Court with this original petition challenging the above notice issued by the 1st respondent under S.25 of the Act. The question that arises for consideration in the original petition is whether for the realisation of the arrears of tax due from a firm, which is the dealer, any steps can be taken under S.25 of the Act against monies due from a partner of the firm.

2. Shri T. L. Viswanatha Iyer, learned counsel for the petitioner, refers to S.25 of the Act and contends that recovery under S.25 of the Act can be had only against the dealer and not against a partner of a firm which is the dealer. S.25 of the Act reads:

"25. Further mode of recovery: (1) The assessing authority may, at any time or from time to time, by notice in writing (a copy of which shall be forwarded to the dealer at his last address known to the assessing authority) require any Officer of the Government or any local authority, company, firm, society or association of persons from whom money is due or may become due to the dealer, or any officer of the Government or any local authority, company, firm, society or association of persons who holds or may subsequently hold money for or on account of the dealer, to pay to the assessing authority either forthwith if the money has become due or is so held, or within the time specified in the notice (not being before the money becomes due or is held), so much of the money as is sufficient to pay the amount due by the dealer in respect of arrears of tax, fee or penalty or the whole of the money when it is equal to or less than the arrears of tax, fee or penalty "

Learned counsel for the petitioner then refers to S.2(iii) and 2(viii) of the Act and contends that when a firm is the dealer a partner of the firm by no stretch of imagination can become the dealer under the Act even though a partner of a firm which is the assessee can be proceeded against for the realisation of tax due from the firm under certain circumstances. S.2(iii) of the Act which defines 'assessee' reads:

"assessee means a person by whom tax or any other sum of money is payable under this Act, and includes every person in respect of whom any proceedings under this Act have been taken for the assessment of tax payable by him."

S. 2(viii) of the Act which d fines 'dealer' reads:

"dealer means any person who carries on the business of buying, selling, supplying or distributing goods, directl