With Regard To The Main Question, Namely, Question v. M/S.empire Estate Bombay

kps IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX REFERENCE NO.142 OF 1995 The Commissioner of Income Tax. ..Applicant -Versus-M/s Empire Estate Bombay. ..Respondent ........... Mr.Suresh Kumar, for the Applicant/ Revenue. ........... CORAM: S.C. DHARMADHIKARIAND B.P. COLABAWALLA, JJ. DATE :- 22[nd] July, 2014 P.C.: 1When this Income Tax Reference was placed before us our attention is invited to the questions framed in the Reference Application. In the order dated 20.10.1992 the Income Tax Appellate Tribunal referred the following questions for opinion of this Court:- (1)Whether, on the facts and in the circumstances of the case and in law the Income Tax Appellate Tribunal is justified in holding that the firm was dissolved on the death of the partner and it was not a case of change in the constitution of the firm?case and in law the Income Tax Appellate Tribunal is justified in holding that the firm was dissolved on the death of the partner and it was not a case of change in the constitution of the firm? (2)Whether, on the facts and in the circumstances of the case and in law the Income Tax Appellate Tribunal is justified in holding that the new firm does not come within the purview of Section 124(5)(b)?case and in law the Income Tax Appellate Tribunal is justified in holding that the new firm does not come within the purview of Section 124(5)(b)? (3)Whether, on the facts and in the circumstances of the case and in law the Income Tax Appellate Tribunal is justified in holding that the Assessing Officer had no jurisdiction over the Assessee firm?case and in law the Income Tax Appellate Tribunal is justified in holding that the Assessing Officer had no jurisdiction over the Assessee firm? 2With regard to the main question, namely, question No.1, Mr.Suresh Kumar invites our attention to the judgment of the Honourable Supreme Court in the case of Commissioner of Income Tax v/s Empire Estate reported in (1996) 218 ITR 355. The Honourable Supreme Court has held that the Tribunal in that case was justified in holding that there should be two assessments and for the period specified in the order passed by the Honourable Supreme Court as the Assessee's case would not fall under Section 187(2) of the Income Tax Act, 1961. The Honourable Supreme Court held that the expression “change in the constitution of the firm” appearing in Section 188 would not be attracted where the constitution of firm changes. The provisions would apply to a firm which survives upon death of a partner. They would apply to the case of a partnership where a partner dies and the Partnership Deed provides that death shall not result in the dissolution of the partnership. If there is no such provision and a partner dies the partnership stands dissolved. The partnership then does not survive upon death of a partner. This case is not one of change in the constitution of the partnership. 3Mr.Suresh Kumar states that this answers the question (1). In our opinion, having perused the entire case forwarded for opinion of this Court and the questions formulated, the question (1) therein stands concluded by the judgment of the Honourable Supreme Court. Once that is the main question and on which an opinion was sought of this Court and others merely pertain to the jurisdictional issue that we are of the opinion that the Reference will have to be answered in terms of the Honourable Supreme Court's judgment (supra). That judgment is in the case of this very Assessee and dealing with the same facts. The question no longer, therefore, survives for our opinion and it is concluded by the Honourable Supreme Court's judgment. The Reference is, accordingly, disposed of. (B.P. COLABAWALLA, J.) (S.C. DHARMADHIKARI, J.)