The main legal point established in the judgment is the absence of machinery provision in the Income-tax Act enabling the Tax Recovery Officer to proceed against the partners of a firm for recovery of tax dues, despite the separate legal entity of the firm and its partners and the joint and several liability of partners for firm's dues.

1. The short, but important, question of law that falls for decision in this writ petition is whether the term "assessee "occurring in sub-section (1) of S.222 of the Income-tax Act, 1961 (Act 43 of 1961), hereinafter referred to as the Act, in the context of the definition in S.2 (7), and other relevant provisions of the Act, would include the partners of the firm in a case where the assessment under S.143 (1) of the Act is in the name of that firm, and the certificate issued under sub-section (2) of S.222 also is in the name of that firm.

2. The facts relevant are few, and are not in dispute. The petitioners are partners of a firm known by name 'Mutual Benefit Corporation, Calicut'. For the assessment years 1965-66 to 1971-72 there was arrears of income-tax from the firm to the tune of Rs. 70,763/-. Therefore, certificate for recovery under S.222 (2) of the Act was issued by the first respondent, Income-tax Officer, Asst. IT, Calicut, on whose file the petitioners and the firm are assessees under the Income-tax Act. On the basis of the tax recovery certificate issued by the first respondent, the second respondent (Income-tax Officer, Collection (Addl.), Calicut), issued Ext. P1 notice No. 46-001-FQ-7570/ CLT. dated 29 81972 to the petitioners. To Ext. P1 notice the 3rd petitioner filed Ext. P2 reply dated 7101972. Thereafter Ext. P3 reminder was sent by the 2nd respondent to the petitioners adverting to Ext. P2 reply also.

3. In this writ petition the relief sought for by the petitioners is the issue of a writ of mandamus directing the respondents to forebear from recovering the tax dues made mention of in Ext. P1. The contentions of the petitioners are many-fold. It is contended before me that

(a) S.222 of the Act prescribes the procedure for recovery of tax from assessees, and according to this procedure, recovery proceedings can be had only against an assessee in default or deemed to be in default, and that too in any one of the four modes prescribed therein; the firm is a separate legal entity from its partners; the firm and its partners being separate assessees for the purpose of S.222 of the Act the firm alone will be a defaulter in case all the tax dues have not been paid off by the firm with respect to the assessment in the name of the firm;

(b) the principle of joint and several liability of the partners for the dues of a firm available under the Partnership Act can be applied is only in the case of one envisaged under S.189 of the Act;.

(c) the proceedings are hit by Art.19 (1) (f) and 265 of the Constitution; and

(d) the person named in the certificate forwarded to the 2nd respondent under sub-section (2) of S.222 of the Act is the firm; under the Act the tax recovery officer has no jurisdiction to proceed against any person or property other than the assessee named in the certificate.

4. The 2nd respondent has sworn to a counter-affidavit on behalf of himself and the first respondent, in which on questions of fact there is hardly any dispute. In Para.5 of the said affidavit it is stated as follows:

"It is true that for the purpose of assessment under the Income Tax Act the firm is treated as a separate legal entity. Both the firm and the partners are separately assessed. When a demand notice for the payment of tax is issued against a firm, it becomes a liability or debt of the firm. Under S.2 (23) of the Income Tax Act, 1961 'firm', 'partner' and 'partnership' have the meanings respectively assigned to them in the Indian Partnership Act, 1932. According to the Indian Partnership Act each and every partner is jointly and severally liable for the debts of the firm. Moreover under 0.21. R.50 (2) of the Code of Civil Procedure, 1908 partners can be proceeded against for the debt of a firm".

The admitted fact is that under S.2 (31) read with S.4 of the Act, the firm as well as its individual partners are separate assessable entities and both are chargeable 10 tax in respect of the income earned by the partners carr