ROLLER FLOUR MILLS Vs. INCOME-TAX OFFICER

JUDGEMENT

(1.) This is a petition under Article 226, Constitution of India for issue of a writ of certiorari or "any other kind of writ or writs or orders as may be appropriate in the circumstances" against the Income Tax Officer, A-Ward, Patiala, The Petitioner is described as Messrs. Roller Flour Mills, Patiala and it is stated in the petition that it was a firm carrying on business of running the Flour Mills and Rice Mills. The reason why it became necessary for the Petitioner firm to make the petition was that the respondent issued a notice on 26-3-1952 calling upon the firm to file a return within 35 days of the receipt of the notice of the total income and of the total world income assessable for the year ending Chet, 2004, B. The respondent resisted the petition.

(2.) Before I deal with the merits of the petition I consider it desirable to dispose of a preliminary point that has arisen because of the allegations contained in the petition regarding the dissolution of the firm. The petition was signed and submitted by Mr. J.N. Kaushal who described himself as "Advocate for the Petitioner's firm Messrs Roller Flour Mills, Patiala". The power of attorney in favour of the counsel was signed by one H.R. Modi. It is common knowledge that only a natural or a juristic person can move a Court of Law. A partnership or a firm is neither a natural person nor a legal entity and Order 30, Rule 1, which enables any two or more persons claiming or being liable as partners and carrying on business in British India to sue or be sued in the name of the firm is an exception to the rule. This rule does not apply to petitions under Article 226 of the Constitution as they are not suits. Nor do I think it was open to the partners of the Petitioner firm to make the petition in the name of the firm after it had been dissolved on the analogy of Order 30, Rule 1. The perusal of the rule goes to show that persons who wish to take' advantage of it and bring a suit in the name of a dissolved firm must be partners on the day the cause of action accrued. This means that the partnership must be in existence on the day of the accrual of the cause of action. In the present case, on the Petitioner's own showing the cause of action to make a earthier under Article 226 accrued on 20-3-1952, when the respondent gave it the notice, but the partnership had been dissolved about four years earlier. It was urged by Mr. Achhru Ram, learned Counsel for the Petitioner that because the respondent gave the notice to the firm and not to any of its erstwhile partners the firm as such had the right to make the petition. In my judgment there is no force in this argument because whatever be the position of the respondent the action taken by the Petitioner-firm must be consistent with the allegations made by it and when it is admitted on its behalf that dissolution of the firm took place long before the respondent's notice and the partnership did not subsist any longer, the firm as such could not make the petition. The other reason why the Petitioner-firm could not take advantage of the form of the respondent's notice is that the respondent does not admit that the firm had dissolved and for this reason he had to issue notice to the firm, but the Petitioner's case is-different. I wish also to add that even if it be conceded that because the respondent gave the notice to the firm this petition could be made in the firm's name, it should have been signed by all the persons who were its partners and no one partner could sign on behalf of others. The condition in a subsisting firm is altogether different because each partner in law is the agent of others, but after the firm is dissolved' there are no partners and consequently the question of one's being an agent for the other docs not arise.

(3.) It was also urged by the Petitioner's learned Counsel that the petition may be treated as one by the partners of the firm. I am inclined to think that this request cannot be accepted, first because we do not know who the partners of the firm were, and secondly the petition is not signed by any one of them. It is true that in the power of attorney that H.R. Modi executed in favour of the counsel who submitted the petition he claimed to be the managing partner of the firm, but the petition itself is silent on the point and I do not think that a description of a person contained in the power of attorney can be treated as a part of the petition or evidence of the fact stated therein. In the circumstances I hold that the petition before us is not a proper petition and is liable to be dismissed for this reason. In view, however, of the fact that the respondent did not raise this objection and had he done this it is probable that the petition would have been amended, I would not like to throw out the petition merely because of, the technical defect but would proceed to deal with the point raised by the respondent regarding the maintainability of the petition.