Sengottuvelan, J.


This second appeal is filed by the plaintiffs in Q.S. No. 225 of 1970, on the file of the Subordinate Judge of Salem, challenging the legality and correctness of the concurrent findings of the courts below.


2. The facts of the case are briefly as follows : One KNPP Narayanasami Chettiar, the husband of the first appellant and father of appellants 2 to 4, as joint family manager, was a partner in the partnership KNPP Narayanasami Chettiar & Company. The said partnership filed returns for income-tax purposes for the asst. yrs. 1952-53, 1953-54 and 1954-55. As per the returns filed, the firm contended that there is no assessable income as the business resulted in a loss. The IT Department, on finding that there was some concealed income, added the concealed income to the returns and started penal proceedings under s. 28(1)(c) of the Indian IT Act, 1922 and levied a penalty of Rs. 85, 000 against the firm on 23-9-1961.


3. The facts brought out in the course of the trial show that the firm KNPP Narayanasami Chettiar & Company was dissolved on 17-11-1955 by agreement. Subsequently, the partner P. P. Narayanasami Chettiar died on 7-6-1958. The Department, relying on the provision contained in the Indian IT Act, 1922 that even after the dissolution of a firm, assessment can be levied on the firm as if it were in existence, passed the order of penalty on 23-9-1961. There was an appeal to the AAC which was also dismissed on 26-6-1963, against which there was a further appeal to the ITAT and the same was also dismissed on 18-12-1964.


4. Subsequently, partition was effected between the members of the family on 31-8-1961 by way of a registered document. The present suit was filed by the widow and the sons of P. N. Narayanasami Chettiar for a declaration that the Union of India is not entitled to proceed against the suit properties which are the properties of deceased Narayanasami Chettiar in their hands, for the penalty levied on the firm.


5. The IT Department contended that the late P. P. Narayanasami Chettiar was a partner of the firm and was also the 'Kartha' and family manager, and therefore, they were all jointly and severally liable for any penalty levied against the firm, and the same is also finding on the appellants who are members of the family, and therefore, the properties of P. P. Narayanasami Chettiar in the hands of the appellants are liable to be proceeded against. The ld. Subordinate Judge, after taking into consideration the relevant provision in the IT Act and the Partnership Act, came to the conclusion that the appellants are not entitled to any relief. As against the said judgment, the appellants herein filed A.S. No. 186 of 1976, on the file of the District Judge, Salem, and the ld. District Judge, after considering the facts of the case and the reported decisions cited before him, came to the same conclusion and confirmed the judgment of the trial Court. This second appeal is filed challenging the legality and correctness of the judgment of the ld. District Judge.


6. While admitting the second appeal, Padmanabhan, J. has formulated the following substantial questions of law :


"(1) Whether, the penalty proceedings could be started and continued against the legal representative of the deceased as the personal action by way of penalty dies with the person and cannot be continued further ?


(2) Whether, the finding of the Courts below can be sustained in the absence of a plea that the appellants' father was a partner as a 'Kartha' of the family ?


(3) Whether, the proceeding initiated against the appellant can be sustained when the disputed amount is not determined and in the absence of a personal hearing to the appellants ?" *


7. The ld. counsel for the appellants addressed arguments on the above three points. The first contention is that the penal proceedings is a personal action and it dies with the person and as such the legal representations of late Narayanasami Chettiar cannot be proceeded against. The said doctrine cannot be applied in respect of liability sustained by the estate of the deceased. In this case, Narayanasami Chettiar was the head and manager of the family, consisting of himself and the appellants herein, and was also a partner of the business. The penalty is levied on the partnership. As such, each partner is jointly and severally liable for the penalty. It is admitted by PW 1 in the course of his evidence that late Narayanasami Chettiar was a partner only in his capacity as 'Karta' of the joint family consisting of himself and the appellants. The said admission is extracted in paragraph 13 of the judgment of the lower Appellate Court. Under the circumstances, it cannot be said the Department cannot proceed against the asset of late Narayanasami Chettiar in the hands of the appellants. Consequently, the first contention of the ld. counsel for the appellants in negatived.


8. The second contention is that there is no plea that the appellants father is a partner in his capacity as 'Kartha' of the family, and as such, the properties in the hands of the appellants cannot be proceeded. In the course of his evidence, PW1 has clearly admitted that his father late Narayanasami Chettiar was the partner of the business in his capacity as family manager. In the case of this admission, it is not open to the appellants to contend that Narayanasami Chettiar was not the family manager. The appellants have also not chosen to file any suit for partition or any suit to declare that the liability incurred by late Narayanasami Chettiar is not binding on them. Under the circumstances, the second plea of the appellants also will have to be

and is accordingly negatived. 9. The third contention is that in any event, the appellants are entitled to agitate whether the penalty was properly levied on the firm. But in this case, it is seen that the other partner have filed appeals to the AAC and the ITAT as well as appeal to the High Court, but without success. Under the circumstances, the present appellants cannot agitate the same matter once again. 10. In the result, I hold that there are no merits in this second appeal. The concurrent findings of the Courts below are confirmed and the appeal is dismissed. However, there will be no order as to costs.