MEHROTRA, J. : This rule was heard along with rule No. 58 of 1959 and in view of our decision in rule No. 58 of 1959 it is not necessary to deal elaborately with this case, but as some of the questions of law raised in the present petition are different front the one decided in the other rule, it is necessary to give some facts. (2) This petition under Article 226 of the Constitution has been flled by Shri N. M. Bhawri and Shri J. N. Bhawri who are partners in M/s. Hardeodas Jagannath - a firm carrying on business at Mawkhar, Shillong. The Income-tax assessments up to the assessment year 1957-58 of the peti­tioners as individuals had been completed. Notices were issued under Sec. 22(2) of the Indian Income-tax Act 1922 (hereinafter called 'the Act') in res­pect of the assessment year 1958-59 against the two petitioners. In pursuance of the aforesaid notice the petitioners filed their returns contain­ing the names and addresses as well as the extent of their shares in different firms in which the peti­tioners are partners. No income was shown in the returns. The petitioners pointed out that they had no other source of income besides their shares as partners in different firms. For the assessment year 1958-59 the Income-tax Officer, Shillong who has been arrayed as respondent No. 1 to the present petition, acting under Sec. 22(4) of the Act, issued a notice for production of the account books and other documents of their income in the previous year and fixed 27th February 1959 as the date for filing the aforesaid documents. The petitioners allege that as the firms in which they were partners had not till then been assessed, they could not comply with that notice and the matter was adjourn­ed to 12th March 1959 in response, to a request from the petitioners' advocate. On 12th March as the account books of M/s. Hardeodas Jagannath - one of the firms in which the petitioners were partners - were with the Superintendent of Taxes, Shillong, a prayer was made by Shri S. P. Sharma on behalf of the aforesaid firm for adjournment. The firm was however assessed on an income of Rs. 9,00,000/-by an order dated 14th March 1959 by respondent No. 1 purporting to act under Sec. 23 (4) of the Act. The firm was however assessed on an income of Rs. 9,00,000/-by an order dated 14th March 1959 by respondent No. 1 purporting to act under Sec. 23 (4) of the Act. This order of assessment is the subject matter of rule No. 58 of 1959. We have already dealt with the respective contentions of the parties in that petition as regards the adjournment granted on the request made by Shri S. P. Sharma. After the firm M/s. Hardeodas Jagannath had been assessed on the 14th March 1959 at an income of Rs. 9,00,000/- under Sec. 23(4), the Income-tax Officer, Shillong by two separate orders dated 14th March 1959 determined the income of the partners at Rs. 4,50,000/- each, being their share in the profit of the firm of M/s. Hardeodas Jagannath and issued demand notices for Rs. 3,19,761.94' N. P. and Rs. 3,18,899.94 N. P. in the names of the petitioners Nos. 1 and 2 respectively. It should be pointed out that the Income-tax Officer, Shillong after assessing the income of the firm M/s.' Hardeodas Jagannath at Rs. 9,00,000/-, determined the tax payable on the aforesaid income by the firm and the two partners to be a sum of Rs. 7,15, 254/-. Out of this sum the two sums mentioned above were assessed to be the tax payable by the 'two petitioners as the partners of the firm and the balance was payable by the firm as the tax. The order of the 14th March 1959 determin­ing the income of the firm and the consequent assessment of the tax has been impugned in Rule 58 of 1959. On the receipt of the demand notices the petitioners filed petitions dated 26-3-1959 under 'S. 27 of the Act praying for re-opening of the as­sessment by setting aside the ex parte order and fur­ther for the stay of the realisation of the tax demand. A similar application was filed on behalf of the firm also and on the 28th March 1959 a Challan was issued to the firm allowing it to pay a sum of Rs. 10,000/- as part of the tax demand and on the 30th March 1959 the aforesaid amount was paid. No orders were passed on the applica­tion filed under Sec. 27 of the Act and appeals were filed by the present petitioners on 14th April ]959. 10,000/- as part of the tax demand and on the 30th March 1959 the aforesaid amount was paid. No orders were passed on the applica­tion filed under Sec. 27 of the Act and appeals were filed by the present petitioners on 14th April ]959. Thereafter an application was made under pro­viso to Sec. 45 o£ the Act before the Income-tax Officer praying for an order not to treat the peti­tioners as defaulters till the final disposal of the appeals. Thereafter on the 24th April 1959 the petitioners were served with notices dated 22nd April 1959 purported to have been issued under section 46(5-A) of the Act addressed to several banks restraining them from paying up to the petitioners any money due from them to the peti­tioners till the tax demand had been paid up. On 20th April 1959 an order is said to have been passed by respondent No. 1 rejecting the stay petitions. This order was communicated to the petitioners later and further a certificate was also issued to the Collector under Sec. 46(2) of the Act for realisation of the tax amount. On these facts by the present petition it is prayed that the assessment orders .passed against the petitioners be quashed and that the orders passed under Sec. 46(5-A) be also set aside. (3) The assessment orders which are impugned by this petition have been filed as annexures to the present petition and they disclose that the assess­ment was made under Sec. 23(4) of the Act on the ground that the petitioners failed to file the return in spite of notices under Sec. 22(2) of the Act. The returns which were filed in pursuance of the aforesaid notices on 29th January 1959 did not show any particulars or the amount of income and as such there was no return in the eye of law at all. Thereafter the notices issued under S. 22(4) were also not complied with. By the same order action under Section 28 (1) (b) was also taken for default under Sec. 22(4). The petitioners' income was determined to be Rs. 4,50,000/- each, being their half share of the profit as per allocation in the firm of M/s. Hardeodas Jagannath, Shillong. Thereafter the notices issued under S. 22(4) were also not complied with. By the same order action under Section 28 (1) (b) was also taken for default under Sec. 22(4). The petitioners' income was determined to be Rs. 4,50,000/- each, being their half share of the profit as per allocation in the firm of M/s. Hardeodas Jagannath, Shillong. (4) The main contention raised by the peti­tioners is that the petitioners having filed their returns in pursuance of the notice under Sec. 22(2), no assessment under Sec. 23(4) could be made without issuing a notice under Sec. 23(2) of the Act. The Advocate General who appears for the respondents, contended that the returns filed by the petitioners on the 29th January 1959 in pur­suance of the notice issued under Sec. 22(2) were no returns in the eye of law and consequently the Income-tax Officer was justified in holding that the petitioners failed to comply with the notice under Sec. 22(2) and were liable to be assessed under Sec. 23(4) without any notice being issued under Sec. 23(2) of the Act. In view of our decision in rule No. 58 of 1959 it is not necessary to examine the rival conten­tions raised by the parties on this behalf. The income was determined as we have already pointed out earlier, on the basis of the share of the profit of the applicants in the firm of M/s. Hardeodas Jagannath, Shillong. We have set aside the order of assessment on the firm dated 14th March 1959 and consequently the present order will automati­cally fall. Sec. 23(5) deals with the assessment of firms. A firm is an assessee under Sec. 2(2) whether it is registered or not. After the amend­ment made by the Finance Act, 1956, income-tax at special low rates is assessable on a registered firm, though no super-tax is assessable on it. The partners are liable to be charged in their individual assessments to both income-tax and super-tax in respect of their share of the firm's profits. After the amend­ment made by the Finance Act, 1956, income-tax at special low rates is assessable on a registered firm, though no super-tax is assessable on it. The partners are liable to be charged in their individual assessments to both income-tax and super-tax in respect of their share of the firm's profits. Sec. 16(1) (b) of the Act provides that- "In computing the total income of an assessee- when the assessee is a partner of a firm, then, whether the firm has made a profit or a loss, his share (whether a net profit or a net loss) shall be taken to be any salary, interest, commission or other remuneration payable to him by the firm in res­pect of the previous year increased or decreased respectively by his share in the balance of the profits or loss of the firm after the deduction of any interest, salary, commission or other remunera­tion payable to any partner in respect of the pre­vious year." Section 23 (5) of the Act provides as follows : "(5) Notwithstanding anything contained in the foregoing sub-sections, when the assessee is a firm and the total income of the firm has been assessed under sub-section (1), sub-section (3) or sub-section (4), as the case may be, - (a) in the case of a registered firm, (i) the income-tax payable by the firm itself shall be deter­mined; and (ii) the total income of each partner of the firm, including therein his share of its in­come, profits and gains of the previous year, shall be assessed and the sum payable by him on the basis of such assessment shall be determined: Provided that if such share of any partner is a loss it shall be set off against his other income or carried forward and set off in accordance with the provisions of Sec. 24: Provided further that when any of such part­ners is a person not resident in the taxable territories his share of the income, profits and gains of the firm shall be assessed on the firm at the rates which would be applicable if it were assessed on him personally, and the sum so determined as payable shall be paid by the firm: Provided also that if at the time of assessment of any partner of a registered firm, the Income-tax Officer is of opinion that the partner is residing in Pakistan, the partner's share of the income, profits and gains of the firm shall be assessed on the firm in the manner laid down in the preceding proviso and the sum so determined as payable shall be paid by the firm; and (b) in the case of an unregistered firm, the Income-tax Officer may, instead of determining the sum payable by the firm itself, proceed to assess the total income of each partner of the firm, in­cluding therein his share of its income, profits and gains of the previous year, and determine the tax payable, by each partner on the basis of such assessment, if, in. the income-tax Officer's opinion, the aggregate amount of the tax including super-tax if any payable by the partners under such pro­cedure would be greater than the aggregate amount which would be payable by the firm and the part­ners individually, if separately assessed; and where the procedure .specified in this clause is applied to any unregistered firm, the provisos to clause (a) of this sub-section shall apply thereto as they apply in the case of. a registered firm." Section 23(6) of the Act lays down as follows: "Whenever the Income-tax Officer makes a determination in accordance with the provisions of sub-section (5), he shall notify to the firm by an order in writing the amount of the total in­come on which the determination has been based and the apportionment thereof between the several partners." The assessment proceedings consist of three different stages (1) the computation of the taxable in­come, (2) determination of the tax payable and (3) demand for the tax so found due. In the case of assessment of the firm after its total income had been assessed, the income-tax payable by the firm itself is t0 be determined and thereafter the total income of each partner of the firm including therein his share of its income, profits and gains of the previous year shall be assessed and the sum payable by him on the basis of such assessment shall be determined. The individual income of the partner therefore, from other sources is to be tagged on to his share of the profits in the firm and a partner is to be assessed on the total income thus computed. In the present case the partners in their returns had pointed out that the only source of their in­come was the profit in various firms. It was open to the Income-tax Officer to reject this contention of the petitioners and hold that they had other source of income besides their share of profits in the firms mentioned in the returns. If Income-tax Officer accepted the contention of the petitioners that their only source of income was their share of profits in the various firms mentioned in the returns, obviously the correct assessment of the petitioners could be made after the income of the various firms had been determined and allocated in accor­dance with the provision of section 23(5) of the Act. The Income-tax Officer took the total income of the partners to be the half share of the profit as per allocation in the firm of M/s. Hardeodas Jagannath and did not care to ascertain the share of the -petitioners' profits in the other firms in which admittedly they were partners. Presumably the Income-tax Officer thought that the amount of the share of profits of the petitioners in the firm of M/s. Hardeodas Jagannath was enough to cover the total income of the petitioners or that the Income-tax Officer intended to tax the petitioners piecemeal. It is not clear from the order of the Income-tax Officer as to what was the basis on which he determined the total income of the peti­tioners to be their share of profits in the firm of M/s. Hardeodas Jagannath. Section 23(5) of the Act provides the procedure as to how the firm is to be assessed and how the income of the firm is to be allocated to the various partners and thereafter the partners assessed. The sec­tion does not expressly provide how and when are the individuals to be assessed if their only source of income is their share of profit in various firms in which they are partners. To my mind it will not be practicable to assess the partners individual­ly unless the firms in which they are partners have been assessed. As we have held that the determina­tion of the firm's income and its assessment of tax under section 23(4) of the Act was invalid and should be set aside, the present petition must also be allowed and the order dated 14th March 1959 assessing the petitioners under section 23(4) must be quashed. We accordingly allow this peti­tion but in the circumstances of the case the parties will bear their own costs of this petition. (5) C. P. SINHA, C. J. : I agree. CD/R.G.D. Petition allowed.