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Issues Involved:
1. Whether the reconstitution of the firm falls under Section 187 or Section 188 of the Income Tax Act, 1961. 2. Whether separate assessments should be made for the income of the firm before and after the reconstitution. Detailed Analysis: Issue 1: Applicability of Section 187 or Section 188 of the Income Tax Act, 1961 The primary issue revolves around whether the reconstitution of the firm, due to the retirement of one partner and the induction of two new partners, should be considered a mere change in the constitution of the firm under Section 187 or a succession of one firm by another under Section 188 of the Income Tax Act, 1961. The assessee argued that the earlier firm came to an end and was succeeded by a new firm, thus falling under Section 188. They contended that the conduct of the parties indicated a dissolution by closing the accounts and drawing up a balance sheet as on 30th Nov., 1981. However, the CIT(A) found that the assessee had not informed the Bank or Excise Authorities about the dissolution, which indicated that it was a case of reconstitution under Section 187. Upon review, it was determined that Section 187(2) applies when one or more partners cease to be partners or new partners are admitted, provided that one or more of the old partners continue in the new firm. In this case, since six of the old partners continued in the new firm, it satisfied the conditions of Section 187(2). The Tribunal held that the case clearly falls under Section 187(2) as a change in the constitution of the firm, not a dissolution. Issue 2: Separate Assessments for Income Before and After Reconstitution The assessee alternatively argued that even if it is considered a reconstitution under Section 187, the incomes for the two periods (before and after reconstitution) should not be clubbed together. They relied on the separate judgment of Justice H.N. Seth in the case of Dahi Laxmi Dal Factory vs. CIT, which suggested that the income of the old firm should not be included in the income of the new firm. However, the Tribunal noted that the majority judgment in the same case, as well as in Vishwanath Seth vs. CIT, established that under general partnership law and Section 187, a reconstituted firm retains its identity and should be assessed for the entire previous year's income. The Tribunal concluded that the observations of Justice H.N. Seth in Dahi Laxmi Dal Factory were impliedly overruled by the majority judgment in Vishwanath Seth. Furthermore, Section 187(1) specifies that "the assessment" shall be made on the firm as constituted at the time of making the assessment, implying a single assessment. The Tribunal supported this interpretation by citing the Hon'ble Bombay High Court decision in E.H. Kathawala & Co., which distinguished between cases under Section 187 (requiring a single assessment) and Section 188 (requiring separate assessments). Conclusion: The Tribunal upheld the CIT(A)'s decision, confirming that the reconstitution of the firm fell under Section 187, necessitating a single assessment for the entire previous year. The appeal was dismissed, affirming the ITO's action of making one assessment on the reconstituted firm. Result: The appeal is dismissed.
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