JUDGMENT The judgment of the Court was delivered by S. D. DAVE, J. - In this petition under article 226 of the Constitution of India, the petitioner Saurabhkumar Parikh challenges the legality and validity of the recovery notice dated September 2, 1985, given to the petitioner by the respondent. The facts and circumstances under which the present petition came to be filed are as under : There was a partnership business being run in the name and style of Energy Electrical Corporation at Ahmedabad. The business as stated above has come into existence in the year 1965 and the business which was a partnership business had four partners. It appears that three partners, namely, (1) Jashbhai Patel, (2) Pravinbhai Patel and (3) Pravina P. Patel had retired some time in January, 1971 and one Prabhashankar Joshi had continued the business thereafter in the form of a sole proprietary concern. It is clear that from January, 1971, till May 14, 1976, the above referred firm was the sole proprietary business and it was being carried on by the sole remaining partner, namely, Prabhashankar Joshi. The petitioner had joined the said Prabhashankar Joshi as a partner with effect from May 14, 1976, as a result of which the sole proprietary concern, namely, Energy Electrical Corporation came to be converted into, once again, a partnership firm on the joining of the petitioner as a partner with effect from May 14, 1976. On August 26, 1976, the said Prabhashankar Joshi retired from the partnership business and thereafter, the present petitioner has become the sole owner of the business. The notice of recovery which is being challenged by the present petitioner in the petition is for an amount of Rs. 59,112 and it pertains to the period before the petitioner joined the abovesaid business. The notice regarding, the recovery which is being challenged is at annexure A dated September 2, 1985, and calls upon the present petitioner to pay the amount mentioned therein. It is not in dispute that the abovesaid recovery or demand is in respect of the sales tax dues of the business for the period before the petitioner had joined the abovesaid business as a partner. It is not in dispute that the abovesaid recovery or demand is in respect of the sales tax dues of the business for the period before the petitioner had joined the abovesaid business as a partner. The main ground of challenge to the abovesaid notice at annexure A is that, it cannot be said that the business which was being carried on in the name of Energy Electrical Corporation ever was transferred to the present petitioner. Learned counsel Mr. R. D. Pathak appears on behalf of the petitioner, while the respondent has been represented by learned counsel Mr. M. G. Doshit. The plank of the contention raised by Mr. Pathak is that by no stretch of imagination it can be said that there is a transfer of business either in whole or in part by any manner, whatsoever, in favour of the petitioner and therefore, the petitioner would not be liable to pay the sales tax dues as demanded by the notice under challenge. The second limb of the contention raised by Mr. Pathak is that, regard being had to the provisions contained under section 31 of the Indian Partnership Act, 1932, the present petitioner would not be liable for any act of the firm done before he became the partner of the firm. It is accordingly on these two counts that learned counsel Mr. Pathak appearing on behalf of the petitioner challenges the legality and validity of the impugned notice. But Mr. Doshit, the learned counsel who appears for the respondent, has urged that when the transactions entered into by the original partners with Prabhashankar Joshi and later on by Prabhashankar Joshi with the present petitioner are looked into, it becomes clear that, there is a clear-cut case of a transfer of business which would fall within the purview of section 26(4) of the Gujarat Sales Tax Act, 1969. Mr. Doshit therefore has urged that the business as a whole, came to be transferred by way of certain transactions or device in favour of the present petitioner and therefore he would be liable to satisfy the demand of the sales tax dues made against him by the impugned notice. The facts which are not in dispute firstly require to be noticed. The business known as Energy Electrical Corporation came into existence some time in the year 1965. The facts which are not in dispute firstly require to be noticed. The business known as Energy Electrical Corporation came into existence some time in the year 1965. The abovesaid business was a partnership business having four partners, including Prabhashankar Joshi. The remaining three partners had retired some time in January, 1971, leaving behind Prabhashankar Joshi as the only man to look after and to run the business which was being run in the name of Energy Electrical Corporation. Though it is stated that three partners had retired and Prabhashankar Joshi had remained as a sole proprietor it does not appear to be in consonance with the legal position. It appears that the three other partners had gone out of the partnership business, and therefore, there was a dissolution of the partnership business. Anyhow in the present petition we are not concerned with the abovesaid nicety regarding the dissolution of a partnership business or the retirement of the partners. But the fact remains that some time in January, 1971, the three partners had walked out of the business and Prabhashankar Joshi was in charge of the business. The third part which is not in dispute is that the present petitioner has joined the business on May 14, 1976. It can be said that the business which was being carried on by Prabhashankar Joshi as the sole proprietor was converted into a partnership business. The partnership was constituted of two persons, namely, Prabhashankar Joshi and the present petitioner, which came into existence on May 14, 1976. The fourth fact which is not again in dispute is the fact that Prabhashankar Joshi had retired with effect from August 26, 1976. In other words Prabhashankar Joshi had walked out of the business and the present petitioner had continued with the business. In other words it can be said that the present petitioner has become the sole owner or the proprietor of the business which was being carried on by the partnership firm. The recovery notice which is under challenge and which finds its place at annexure A is dated September 2, 1985. The dues shown thereat would come to Rs. 65,068.36. It is not in dispute that the dues which have been demanded by the abovesaid notice from the petitioner relate to the period prior to May 14, 1976. As noticed above, the main contention of learned counsel Mr. The dues shown thereat would come to Rs. 65,068.36. It is not in dispute that the dues which have been demanded by the abovesaid notice from the petitioner relate to the period prior to May 14, 1976. As noticed above, the main contention of learned counsel Mr. Pathak appearing on behalf of the petitioner is that the provisions contained under section 26 of the Gujarat Sales Tax Act, 1969, would not come into play because there is no transfer of business either in whole or in part as envisaged by the abovesaid special provision regarding the liability to pay taxes in certain cases. With a view to appreciate this contention raised by Mr. Pathak the reference shall have to be made to the partnership deed at annexure B dated May 14, 1976. This partnership deed shows very clearly that the present petitioner Saurabhkumar Parikh had joined with Prabhashankar Joshi as a partner in a running business which was being run in the name and style of Energy Electrical Corporation. It is clear that the petitioner joins the abovesaid business with effect from May 14, 1976. The second document which requires a reference is the document under which Prabhashankar Joshi retired from the abovesaid partnership business. This document is available at annexure C. A reference to this deed would go to show that with effect from August 26, 1976, Prabhashankar Joshi walks out of the partnership business and the present petitioner Saurabhkumar Parikh takes over the business which was being run in the name of M/s. Energy Electrical Corporation as the sole owner or the sole proprietor. As stated above the partnership business in the name and style of Energy Electrical Corporation had come into existence in the year 1965 but three partners had retired sometime in January, 1971 and Prabhashankar Joshi had become the sole owner or the sole proprietor of the abovesaid business. Anyhow the petitioner joined the business with effect from May 14, 1976, but within a span of some months only Prabhashankar Joshi goes out of the business with effect from August 26, 1976. From the sequence of the transactions as noticed above it becomes clear that the business which was being run in the name of M/s. Energy Electrical Corporation was sought to be transferred to the present petitioner and the desired effect has been brought about by the abovesaid three transactions. From the sequence of the transactions as noticed above it becomes clear that the business which was being run in the name of M/s. Energy Electrical Corporation was sought to be transferred to the present petitioner and the desired effect has been brought about by the abovesaid three transactions. Section 26(4) of the Act speaks of the transfer of the business in whole or in part by sale, lease, leave or licence, hire or "in any other manner whatsoever". Looking to the abovesaid sequence of transactions it becomes clear that there is a transfer of business which would fall within the meaning of "in any other manner whatsoever" as envisaged by the provisions contained under section 26(4) of the Act. Mr. Pathak, learned counsel who appears on behalf of the petitioner, has placed heavy reliance upon the Supreme Court decision in Sunil Siddharthbhai v. Commissioner of Income-tax [1985] 156 ITR 509. In that decision before the Supreme Court a partner of the firm had made over capital assets which were held by him to a firm as his contribution towards the capital. The question was as to whether there was a transfer of capital assets within the terms of section 45 of the Income-tax Act, 1961. The second question with which the Supreme Court was concerned was as to whether such a partner can be said to have received the consideration within the meaning of section 48 of the Income-tax Act. Examining the abovesaid two questions in the light of the facts which were made available to the Supreme Court, it has been stated that when the assessee, a partner in a firm, made over to the firm certain shares in a company which were held by him, there was a "transfer" of the shares. But it was pointed out that by doing so he receives no consideration within the meaning of section 48 of the Income-tax Act. It was also pointed out that in the same way such a partner does not gain any profit or gain within the meaning of section 45 of the Income-tax Act. Therefore this decision on which learned counsel Mr. Pathak has placed reliance very clearly states that, when the assessee, a partner in a firm had made over to the firm certain shares in the company which were held by him, there was indeed a transfer of the shares. Therefore this decision on which learned counsel Mr. Pathak has placed reliance very clearly states that, when the assessee, a partner in a firm had made over to the firm certain shares in the company which were held by him, there was indeed a transfer of the shares. But again it is made clear by the Supreme Court that there is no consideration within the meaning of section 48 and no gain or profit within the meaning of section 45 of the Income-tax Act, 1961. Therefore this decision which clearly says that there was a clear transfer of the shares by the assessee in favour of the company would not assist Mr. Pathak in his submissions before this Court. Moreover in a way this decision on which Mr. Pathak has placed reliance would also go to counter his contention before this Court. In the last para of this decision at page 523 it has been pointed out that "it will be open to the income-tax authorities to go behind the transaction and examine whether the transaction of creating the partnership is a genuine or a sham transaction and, even where the partnership is genuine the transaction of transferring the personal asset to the partnership firm represents a real attempt to contribute to the share capital of the partnership firm". It is also pointed out that it would be open to enquire into whether there is a device or ruse to convert the personal asset into money substantially for the benefit of the assessee while, evading tax on a capital gain. In the same para the Supreme Court has preferred to observe thus : "All these and other pertinent considerations may be taken into regard when the Income-tax Officer enters upon a scrutiny of the transaction, for, in the task of determining whether a transaction is a sham or illusory transaction or a device or ruse, he is entitled, to penetrate the veil covering it and ascertain the truth." Therefore the Supreme Court has stated very clearly that the income-tax authority while considering the question as to whether a transaction is a sham or a device or ruse, is entitled to penetrate the veil covering it and ascertain the truth. The abovesaid observation made by the Supreme Court would lend support in our effort to find out from the abovesaid documents the real purpose and intent of the parties who had entered into the transaction. The reliance was also sought to be placed on the Gujarat High Court decision in New Saurashtra Vanaspati Co. v. B. A. Maharaja, Sales Tax Officer [1969] 24 STC 92. In that decision, before the Bench of this High Court the question was regarding the liability of the petitioner and the question was as to whether he could have been said to have succeeded to the business which was being carried on by some other firm. The facts are entirely different. One limited company known as Morvi Vegetable Products Limited had invited offers for lease of its factory and ultimately had given the factory on lease in favour of one firm known as Commercial Sales Agency (CSA). The CSA had continued the manufacturing process in the factory for some time. Ultimately the CSA, the lessee had surrendered the possession of the factory to the lessor-company and the lessor-company had invited fresh tenders by public advertisement and when the petitioner approached for lease the lease was given to them. By the notice dated March 22, 1968, the Sales Tax Officer had called upon the petitioner-firm to show cause why it should not be held to be the successor of CSA. In view of these facts it has been laid down by the Bench of this Court that the dealer liable to pay tax must have been succeeded in the business and that such succession must be in consequence of a transfer, disposal, or change, etc., in the ownership of the business. The facts as noticed above are entirely different and the question posed before the Bench of this Court was not in relation to a transfer within the meaning of section 26(4) of the Act. Naturally therefore the abovesaid decision would not render any assistance to Mr. Pathak in his submission before this Court in the present petition. The same is the position in respect of the Supreme Court decision in State of Punjab v. Jullundur Vegetables Syndicate [1966] 17 STC 326. In that case the firm was dissolved before the order of assessment was made by the sales tax authorities. Pathak in his submission before this Court in the present petition. The same is the position in respect of the Supreme Court decision in State of Punjab v. Jullundur Vegetables Syndicate [1966] 17 STC 326. In that case the firm was dissolved before the order of assessment was made by the sales tax authorities. In view of this fact it has been held that when the firm was dissolved before the assessment was made, the order of assessment dated September 3, 1955, were bad. Again here, in this decision also, the facts being entirely different and the question of law which had arisen before the Supreme Court also being entirely different the abovesaid Supreme Court decision would not carry further the contention which learned counsel Mr. Pathak wants to urge before us. Mr. Doshit, learned counsel for the respondent had invited our attention to certain averments, made by the petitioner in the petition itself, with a view to show that the running business was being accepted by the present petitioner and that, therefore, there is a transfer within the meaning of section 26(4) of the Act. Mr. Doshit has firstly taken us to the averments made by the petitioner at para 4.2, at page 3, in which it has been stated very clearly that the partnership had come into existence in the year 1965 and the partnership business was known as Energy Electrical Corporation and that three partners had retired therefrom and Prabhashankar Joshi had continued the said business as the sole proprietory concern. These averments which find place in para 4.2 of the petition go to show clearly without any manner of doubt that the business was transferred or was taken over by Prabhashankar Joshi when the three partners had walked out of the business. In the same way in the very next para, that is, para 4.3 of the petition the petitioner has further stated that the petitioner had joined the said Prabhashankar Joshi as a partner with effect from May 14, 1976, as a result thereof the sole proprietary concern came to be converted into a partnership business on the joining of the petitioner as a partner therein with effect from May 14, 1976. At para 4.12 also once again the petitioner has stated that the petitioner wanted to start a new business and therefore the petitioner stopped the said proprietary concern in 1980 which he continued right from August 26, 1976. A joint reading of the abovesaid averments made by the petitioner in the petition itself would go to show that the same business, namely, Energy Electrical Corporation was carried further by Prabhashankar Joshi and later on by the petitioner himself. The same position is obtained from the partnership deed at annexure B. Clause 16 thereof says very clearly that the orders which were received by the original partnership firm were to be executed by the partnership firm which was constituted of Prabhashankar Joshi and the petitioner. From this clause 16 it is clear that the same business which was being carried on by the old firm was, in fact and in reality, continued by the present petitioner. It is indeed true that clause 19 of this partnership deed goes to show that the parties had agreed that the subsisting tax liability, etc., shall be borne by Prabhashankar Joshi. But it requires to be appreciated that the abovesaid was the arrangement, made by the partners with a view to ascertain the liability inter se. The abovesaid clause 19 in the partnership deed at annexure B would not override the statutory provisions contained under section 26(4) of the Act, which provide a special machinery for the recovery of sales tax dues in case of a transfer of a business. In view of this position the abovesaid clause 19 on which Mr. Pathak had laid much emphasis, would not be able to persuade us to take a different view. As noticed above, Mr. Pathak had also tried to urge that looking to the provisions contained under section 31 of the Indian Partnership Act, 1932, the present petitioner would not be liable for any act of the firm done before he became a partner. The abovesaid submission came to be made by learned counsel Mr. Pathak, placing reliance upon section 31 of the Indian Partnership Act, 1932, coupled with the fact that the present petitioner had joined only on May 14, 1976. The abovesaid submission came to be made by learned counsel Mr. Pathak, placing reliance upon section 31 of the Indian Partnership Act, 1932, coupled with the fact that the present petitioner had joined only on May 14, 1976. But it requires to be noticed pertinently that the abovesaid are the provisions under Chapter V of the Indian Partnership Act, 1932, which are meant for governing of the relations between the partners inter se. It cannot be said that the abovesaid provisions in the general law of partnership would override the special provisions contained under section 26(4)(a) of the Act of 1969, which is a taxing statute. Section 26 of the Act provides a special machinery for the recovery of the tax in certain cases. We are not concerned with the other eventualities which are also taken care of by the provisions contained under section 26 of the Act. But sub-section (4) of section 26 of the Act clearly speaks of the eventuality which arise in case of a transfer of a business in whole or in part. When such a question arises the provisions contained under section 26(4) of the Act of 1969 would have precedence over the general provisions contained under section 31 of the Indian Partnership Act, 1932. In view of this position the abovesaid contention raised by Mr. Pathak also cannot be accepted. The conclusion therefore is that by the series of transactions there is a transfer of the business which was being run in the name of M/s. Energy Electrical Corporation to the present petitioner within the meaning of section 26(4) and, therefore, the petitioner would not be in a position to successfully challenge the notice of recovery or demand which is at annexure A. The petition therefore fails and requires to be dismissed. The petition is, therefore, accordingly dismissed. The ad interim relief, if any, operative up to date shall stand vacated. Rule discharged. Petition dismissed.