1974 (6) TMI 20 - HC - Income Tax

Summary

Issues Involved:
1. Change in the constitution of the firm.
2. Applicability of Section 187 versus Section 188 of the Income-tax Act, 1961.
3. Whether a single assessment or separate assessments should be made for the two periods.

Issue-wise Detailed Analysis:

1. Change in the Constitution of the Firm:
The assessee-firm, originally consisting of four partners, admitted three new partners on October 30, 1965. The business continued with the same assets and liabilities, and no dissolution account was prepared, indicating a change in the constitution of the firm rather than the formation of a new firm.

2. Applicability of Section 187 versus Section 188 of the Income-tax Act, 1961:
Section 187(1) mandates that if there is a change in the constitution of the firm, the assessment should be made on the firm as constituted at the time of making the assessment. Section 187(2)(a) defines a change in the constitution as occurring when one or more partners are added or removed, but the business continues with some or all of the original partners. Section 188 applies when one firm is succeeded by another, necessitating separate assessments. However, in this case, the continuity of the business and the partners indicates that Section 187 is applicable, not Section 188.

3. Whether a Single Assessment or Separate Assessments Should Be Made:
The Income-tax Officer made a single assessment for the entire accounting year, which was upheld by the Appellate Assistant Commissioner. The Income-tax Appellate Tribunal initially directed separate assessments for the two periods, relying on its earlier decision in a similar case (I.T.A. No. 404/1968-69). However, the High Court found that the business continued without interruption and with the same assets and liabilities, falling under the criteria of Section 187(2)(a). Therefore, a single assessment should be made on the firm as constituted at the time of making the assessment.

Conclusion:
The High Court concluded that the change in the partnership constituted a change in the constitution of the firm under Section 187(2)(a) of the Income-tax Act, 1961. Consequently, a single assessment should be made on the firm as constituted at the time of making the assessment, rather than separate assessments for the two periods. The Tribunal's decision to direct separate assessments was overturned, and the assessee was ordered to pay the costs of the reference to the Commissioner of Income-tax.