In cases of reconstitution under Section 187 of the Income Tax Act, the same firm continues and is assessable in respect of the income of the entire previous year.

( 1 ) AT the instance of the Revenue, the Income-tax Appellate Tribunal, Allahabad, has referred the following question for our opinion:

"whether the Tribunal was right in holding that even though there had been only a change in the constitution of the firm on the death of Sri Basant Behari, two separate assessments will have to be made--one for the period from April 1, 1972, to November 5, 1972, and the other for the period November 6, 1972, to March 31, 1973 ?"

( 2 ) THE facts as stated in the statement of the case are that one of the partners of the assessee-firm, namely, Basant Behari, died on November 5, 1972. The dispute relates to the assessment year 1973-74, the accounting year for which was the financial year 1972-73. As the death occurred during the accounting year, the assessment year stood broken up into two parts--one from April 1, 1972, to November 5, 1972, and the other from November 6, 1972, to march 31, 1973. The assessee-firm, however, filed a single return for the entire assessment year. The Income-tax Officer, therefore, made only one assessment in regard to the entire income shown in the return.

( 3 ) THE assessee-firm appealed before the Appellate Assistant Commissioner and contended that two assessments should have been made for the two periods, but the appeal failed.

( 4 ) THE assessee then carried the dispute to the Tribunal raising the contention that the old firm was dissolved on November 5, 1972, when Basant Behari, one of the partners, died and a new firm came into being thereafter. It was, therefore, conceded that the assessed, though only one return was filed in respect of the income relating to the two periods (sic ). Relying on Shiv shanker Lals case [1977] 106 ITR 342 (All), it was also contended before the Appellate tribunal on behalf of the assessee that even if it was held that there was no dissolution of the firm on the death of one of the partners and there had been only a change in the constitution of the firm in the event of the death, two separate assessments would have to be made in respect of the income earned by the old firm and the reconstituted firm. The Tribunal found that the partnership deed dated April 1, 1968, whereunder the firm was constituted, clearly provided that the partnership will not dissolve on the death of any partner. Also it was held that there was no evidence to suggest that the firm actually stood dissolved on the death of Basant Behari. This view was taken by the, Tribunal on the facts that the same set of account books was continued even after the death of one of the partners and the books were closed only at the end of the accounting year. However, the Tribunal relying on Shiv Shanker Lals case [1977] 106 ITR 342 (All), accepted the assessees claim that two separate assessments were required to be made though there was only a change in the constitution of the firm. The Tribunal was of the view that the fact that the assessee had shown the income of both the periods in a single return would not change the legal position that two separate assessments had to be made when there was a change in the constitution of the firm. The Tribunal, therefore, directed the Income-tax Officer to make two separate assessments for the two periods.

( 5 ) IT is, therefore, clear that the Tribunals decision rests on Shiv Shanker Lals case [1977] 106 itr 342 (All ). It is undisputed that a Full Bench of this court in Vishwanath Seth v. CIT [1984] 146 ITR 249 has not approved the view taken by this court in Shiv Shanker Lals case [1977] 106 itr 342 and followed up in the Full Bench case of Badri Narain [1978] 115 ITR 858 (All ). In vishwanath Seths case [1984] 146 ITR 249 (All), the Full Bench relied on Hoshiarpur Electric supply Co. v. CIT [1971] 79 ITR 164 (P and H), Addl. CIT v. Visakha Flour Mills [1977] 108 itr 466 (AP) [fb] and also that of the Delhi High Court in CIT v. Sant Lal Arvind Kumar [1982] 136 ITR 379, which have dissented from Shiv Shanker Lals case [19