JUDGMENT The judgment of the Court was delivered by S. D. SHAH, J. - On reference application being filed under section 69(1) of the Gujarat Sales Tax, 1969, hereinafter referred to as "the said Act", the Tribunal has framed the following two questions of law for our decision : "(1) Whether on the facts and in the circumstances of this case and on construction of the relevant deed, dated December 29, 1973, the Tribunal was right in law in holding that it was not a deed of dissolution of M/s. Jalaram Engineering Works itself as a firm, but that it was merely a deed of retirement of the two applicants as partners of that firm with effect from November 26, 1973 ? (2) Whether on the facts and in the circumstances of this case, the Tribunal was right in law in holding that by virtue of condition No. (4) of the above deed, both applicants continued to be liable for payment of tax as levied upon the firm even after their retirement, along with the other two continued partners, till the date of receipt of the intimation of their retirement by the Commissioner of Sales Tax in terms of section 25 of the Gujarat Sales Tax Act, 1969, as construed by the Tribunal ?" 2. It is necessary to refer to the facts to answer the said questions : (i) The applicants and two other partners commenced business of fabrication and manufacture of goods in the name and style of M/s. Jalaram Engineering Works at Vadodara on and from December 11, 1972. The firm was duly registered as a dealer under the Gujarat Sales Tax Act, 1969. Thereafter, by agreement, dated 29th December, 1973, two out of four partners, namely, the present applicants retired as partners of the said firm with effect from 26th November, 1973, and the remaining two partners, namely, (i) Shantilal Ratilal Raberu and (ii) Rameshchandra Harakji Chandrani continued the business of the said firm having acquired the assets, rights and liabilities of that firm from the said date. It is required to be noted that the applicants after retiring as partners did not intimate the date of their retirement to the Commissioner by notice in that behalf in writing. It is required to be noted that the applicants after retiring as partners did not intimate the date of their retirement to the Commissioner by notice in that behalf in writing. Such intimation was required to be given within 15 days from the date of retirement, and admittedly, the applicants did not give intimation of their retirement within a period of 15 days. (ii) The Sales Tax Officer of Vadodara, served a statutory notice of the proposed assessment of the firm for the accounting year from January 1, 1973 to December 31, 1973. Since the Sales Tax Officer has never received intimation of retirement of the two applicants from the partnership firm he has finalised the assessment of the said firm for the abovesaid period by order, dated 11th October, 1976 and held the present applicants liable for the payment of tax assessed. (iii) The present applicants, thereafter, filed an appeal before the Assistant Commissioner of Sales Tax, inter alia, contending that they had retired from the partnership firm with effect from 26th November, 1973, and that therefore, the assessment relating to period after the date of their retirement as partners was illegal, so far as their liability was concerned. It was also contended by them before the appellate authority that on their retirement from the partnership firm, the firm stood dissolved with effect from 26th November, 1973, and the business was, thereafter, continued by the other two partners and for liability incurred while carrying on such business, they cannot be liable. (iv) The Assistant Commissioner negatived both these contentions and held that there was no dissolution of the firm, but in fact, the present applicants have retired from the partnership firm and the remaining two partners have continued the business of the existing partnership firm. The Assistant Commissioner granted certain partial reliefs in favour of applicants. (v) Being aggrieved by the order of the Assistant Commissioner of Sales Tax, the applicants approached the Tribunal. After considering the terms and conditions of the deed, dated 29th December, 1973, the Tribunal came to the conclusion that the said deed was not a deed of dissolution but it was a mere deed of retirement of the two applicants as partners of the said firm. However, the Tribunal found that on retirement of applicants, the original firm had not come to an end and had continued to run the business. However, the Tribunal found that on retirement of applicants, the original firm had not come to an end and had continued to run the business. The Tribunal, therefore, dismissed the appeal. (vi) However, on application for reference being made to the Tribunal it was the opinion of the Tribunal that question of construction of deed, dated 29th December 1973, was pure question of law, and that it was required to be referred for our opinion. The Tribunal, therefore, formulated the two questions of law stated hereinabove for our opinion. 3. In order to answer the first question of law, it is necessary to refer to the terms and conditions of deed, dated 29th December, 1973. The said deed is captioned as "deed of dissolution" of M/s. Jalaram Engineering Works. Thereafter, it is recited in the preface of the said deed that the said partnership firm was carrying on its business in the name and style of M/s. Jalaram Engineering Works since 11th December, 1972. From the said partnership firm two partners, namely, (i) Smt. Muktaben Jayantilal and (ii) Smt. Ramaben Kantilal Vithalani (present applicants) have retired voluntarily since they have expressed their desire to retire on 26th November, 1973 and the remaining two partners have consented to their retirement from the partnership firm. It is further stated that in view of the said development the said two partners (applicants) have retired from the partnership firm with effect from 26th November, 1973 and the document of their retirement is being executed on 29th December, 1973, on the terms and conditions stated therein. Condition No. 1 stipulates that from partnership firm Smt. Muktaben and Ramaben have retired with effect from 26th November, 1973, and the remaining two partners, namely, Shantilal Ratilal Rakesh and Rameshchandra Harakchandrani have become owners and partners of the business of the firm and the said firm, i.e., M/s. Jalaram Engineering Works shall be competent to carry on business. By condition No. 2 it is provided that the retired partners, i.e., Muktaben and Ramaben Kantilal (applicants) shall not have to discharge any liability after 26th November, 1973, i.e., the date of retirement. By condition No. 3 it is, inter alia, stated that the partners have inter se seen the account up to 21st December 1973. By condition No. 2 it is provided that the retired partners, i.e., Muktaben and Ramaben Kantilal (applicants) shall not have to discharge any liability after 26th November, 1973, i.e., the date of retirement. By condition No. 3 it is, inter alia, stated that the partners have inter se seen the account up to 21st December 1973. Condition No. 4, inter alia, stipulates that the entire liability relating to credit/debit and taxes excluding income-tax would be taken by the two partners who have continued in the partnership firm after the retirement of applicants from 26th November, 1973. Condition No. 5 stipulates that the retiring partners have agreed to allow the remaining partners to carry on their business in the name and style of M/s. Jalaram Engineering Works with effect from 27th November, 1973. In the condition No. 6 it is stipulated that the two continuing partners shall pay to the retiring partners amount of Rs. 13,738 by monthly instalments with 15 per cent interest thereon. 4. From the above referred terms and conditions of the deed, dated 29th December, 1973, we are of the opinion that though captioned as "deed of dissolution" it is clear that the partnership firm, namely, M/s. Jalaram Engineering Works is permitted to continue its principal business through remaining two partners with the same assets. The two partners, namely, the present applicants are permitted to retire with effect from 26th November, 1973. They admitted their liability as partners of the said partnership firm till 26th November, 1973, and with respect to any liability arising thereafter the remaining two partners have taken over the liability. The two applicants are described in the entire deed as "retiring partners" and the other two partners are described as "continuing partners." Name of the same firm is also maintained. Business carried out by the firm is also stated to be the same business which the firm was carrying on earlier. We are, therefore, of the opinion that the applicants who are partners had retired from the said partnership firm permitting remaining two partners to continue same business as partners of the partnership firm in the same name and style. The said deed, is not a deed of dissolution though it is captioned as "dissolution deed", but it is a "deed of retirement of two partners". The partnership firm as such does not come to an end nor does it stand dissolved. The said deed, is not a deed of dissolution though it is captioned as "dissolution deed", but it is a "deed of retirement of two partners". The partnership firm as such does not come to an end nor does it stand dissolved. We, therefore, find that on construction of the deed, dated 29th December, 1973, the Tribunal was right in law in holding that it was merely a deed of retirement of two partners (applicants) and it was not a deed of dissolution of M/s. Jalaram Engineering Works. 5. The second question relates to interpretation of condition No. 4 of the said deed, dated 29th December, 1973. As stated hereinabove, by condition No. 4, it is inter alia, stipulated that continuing partners have taken over the rights and liabilities including liability to pay all taxes except income-tax, and therefore, the retiring partners are not required to discharge any liability. Based on this stipulation in the deed, it was contended before the Tribunal that there was no liability of the applicants for payment of tax as levied. In order to appreciate this submission, it is necessary to refer to section 25 of the said Act : "25. Notwithstanding any contract to the contrary, where any firm is liable to pay tax under this Act, the firm and each of the partners of the firm shall be jointly and severally liable for such payment : Provided that, where any such partner retires from the firm he shall intimate the date of his retirement to the Commissioner by a notice in that behalf in writing and he shall be liable to pay the tax and the penalty (if any) remaining unpaid at the time of his retirement and any tax due up to the date of retirement though unassessed at that date : Provided further that where no such intimation is given within fifteen days from the date of retirement, the liability of the partner under the first proviso shall continue until the date on which such intimation is received by the Commissioner." It is pertinent to note that the section begins with a non-obstante clause overriding any provision in the contract to the contrary. Therefore, even if there is a contract to the contrary amongst partners of firm wherein the firm is liable to pay tax under the said Act, the firm as well as each of its partners jointly and severally are liable for payment of such tax. When any partner retires from the partnership firm there is obligation on him to intimate the date of his retirement to the Commissioner by notice in that behalf in writing. However, he is liable to pay the tax or penalty (if any) remaining unpaid at the time of his retirement. This provision, with respect to retiring partner and his liability to pay tax till the date of his retirement, clearly provides that, if the partner intimates the date of his retirement to the Commissioner by notice in writing, within 15 days, his liability for tax or penalty for the period subsequent to the date of his retirement shall come to an end. In case of failure of a partner to give intimation in writing within 15 days from the date of his retirement, the liability of such partner continues until he gives the intimation of his retirement. The effect of this provision is that in the absence of written intimation within stipulated time by retiring partner, about his retirement, he continues to be liable to pay tax despite his retirement from the partnership firm. 6. The learned advocate for applicant submits that on retirement of the applicants from the partnership firm, a new separate firm comes into existence and reference to the firm in the main part of this section is to a "firm" which is liable as a dealer under the Act, and therefore, those partners who continue the business are liable to tax and not the retiring partners. He further submits that for the purpose of sales tax alone a partnership firm is described as separate exigible entity, and therefore, a firm which continued the business after retirement of two applicants could be treated as separate and distinct entity. In his submission the continuing firm which continued business with two partners after 26th November, 1973, being separate exigible entity it was liable to pay tax. We are afraid we cannot accept such contention in view of specific provisions of section 25. In his submission the continuing firm which continued business with two partners after 26th November, 1973, being separate exigible entity it was liable to pay tax. We are afraid we cannot accept such contention in view of specific provisions of section 25. We are of the opinion that by section 25 it is clearly stipulated that where any firm is liable to pay tax under the said Act, the firm and each of the partners of firm are jointly and severally liable for such payment. Therefore, despite a contract to the contrary neither the firm nor any of the partners of the firm can avoid liability to pay tax which is incurred under the provisions of the said Act. In case of retirement of a partner, it is required that he shall give an intimation in writing of the date of his retirement to the Commissioner by notice within 15 days. In that eventuality he shall cease to be liable to pay tax or penalty which has become payable for the period subsequent to the date of retirement. Thus, in case of retirement of a partner, his liability to pay tax would come to an end from the date of his retirement provided he intimates the date of his retirement to the Commissioner in writing by notice within 15 days from the date of his retirement. 7. The Legislature has even provided the consequence of failure of a retired partner to intimate the date of his retirement. Second proviso to section 25 provides that in case of failure of a retired partner to intimate the date of his retirement within 15 days his liability as partner of the partnership firm shall continue. It may be mentioned that the liability was that of the partnership firm and the partner. The liability was incurred as partner of the partnership firm. On his retirement that liability would have come to an end had he complied with the requirement of giving notice in writing within a period of 15 days. On failure to comply with the said requirement of law the liability would continue. The second proviso is about the liability of a retiring partner who fails to intimate in writing to the Commissioner about his retirement. We are, therefore, of the opinion that section 25 of the Act does not countenance any such submission. On failure to comply with the said requirement of law the liability would continue. The second proviso is about the liability of a retiring partner who fails to intimate in writing to the Commissioner about his retirement. We are, therefore, of the opinion that section 25 of the Act does not countenance any such submission. The very purpose of section 25 would be frustrated if the second proviso is read so as to mean that on retirement of partner on his failure to intimate the date of his retirement the liability of the firm which continued the business will continue and not that of the retiring partners. The Tribunal has rightly negatived such submission by holding that the word "firm" as used in section 25 is not referable to the firm of continuing partners only. In fact, such a construction is not consistent with the enactment of second proviso to section 25. Reference to the firm in the main section makes it abundantly clear that the liability of retiring partners of the firm is to be treated as a continuing liability in the absence of intimation in writing within 15 days by the retiring partners and for the purpose of this Act even retiring partner would continue to incur the liability. We are, therefore, of the opinion that the Tribunal was right in holding that despite condition No. 4 of the said deed both the applicants continued to be liable for payment of tax of the firm along with the other two continuing partners. 8. It may be mentioned at this stage that Mr. Pathak has sought reliance upon the decision of the Supreme Court in the case of Deputy Commissioner of Sales Tax v. K. Kelukutty reported in [1985] 60 STC 7. In the case before the Supreme Court there was one partnership firm carrying on business in the name and style of M/s. K. Kelukutty consisting of 6 partners. Same partners also carried on the business in the name and style of M/s. K. K. K. Sons Saw Mills. In the case before the Supreme Court there was one partnership firm carrying on business in the name and style of M/s. K. Kelukutty consisting of 6 partners. Same partners also carried on the business in the name and style of M/s. K. K. K. Sons Saw Mills. For the assessment years 1968-69 and 1969-70 the turnover of business of M/s. K. K. K. Sons Saw Mills was not assessed to sales tax and since the two partnership firms were run by the same six individuals the Sales Tax Officer treated their business as business of single partnership firm and included the turnover of business of M/s. K. K. K. Sons Saw Mills in the business of M/s. K. Kelukutty. The appellate authority confirmed the order of the Sales Tax Officer but the Tribunal reversed the said order. It is required to be noted that in the case before the Supreme Court there were two absolutely distinct and independent partnership firms carrying on distinct business. It was in the context of these facts that the Supreme Court made certain observations on which reliance is sought to be placed by the learned advocate for the applicants, Mr. Pathak. We are of the opinion that the principle enunciated therein by the Supreme Court is not applicable to the facts and circumstances of this case, especially when before us there is one partnership firm only namely, M/s. Jalaram Engineering Works, and when the two partners (applicants) of the said partnership firm have retired and the remaining two partners have continued business of the firm. In fact, question which arose before the Supreme Court does not arise in the facts and circumstances of the present case before us and we are only concerned with the question as to whether the retiring partners are liable to pay sales tax for the period subsequent to their retirement in the absence of intimation of their retirement in writing to the authority within stipulated period. We are, therefore, of the opinion that the said decision of the Supreme Court does not deal with the question that is raised before us. 9. In the result, we answer the questions 1 and 2 in the affirmative, i.e., against the assessee and in favour of department. There shall be no order as to costs. Reference answered in the affirmative.