Ramachandra Iyer, C.J.- This is a reference under section 66(2) of the Income tax Act, 1922, at the instance of the assessee, C. Angamuthu Mudaliar &38; Co., a partnership firm which is carrying on business as cloth merchants at Erode. The question referred to us for our opinion runs thus: “Whether on the facts and in the circumstances of the case, the inclusion of the share income of the four minors from C. Angamuthu Mudaliar & Co. in the hands of their father, C. Arumugha Mudaliar, under section 16(3)(a)(ii) of the Act without applying the provisions of section 40 of the Act is valid in law.” The firm was originally constituted on March 3, 1952. It then consisted of 4 partners of whom Arumugha Mudaliar was one. One of the other partners retired from the firm about four years later, and on November 2, 1956, the major divided son of Arumugha Mudaliar was taken in as a partner. The other four minor sons of the same gentleman were also admitted to the benefits of the partnership. The partnership firm was subsequently registered under the provisions of the Income tax Act For the assessment year 1958-59 (the relevant year of account ending with October 31, 1957), the Income-tax Officer, while computing the total income of the firm ascertained the shares of the various partners, and, so far as the minor children of Arumugha Mudaliar were concerned, he stated that it would be included in the share income of Arumugha Mudaliar, their father. This was done having regard to the provisions of- section 16(3) of the Act. Neither Arumugha Mudaliar nor the guardian of the minor children filed any appeal against that order ; but the assessee-firm did. It contested the propriety of the order of the Income-tax Officer consolidating the share income of the father with that of the minor sons. The contention on behalf of the firm was that the provisions of section 40 of the Act would prevail over those contained in section 16(3) and that Arumugha Mudaliar could if at all, be assessed separately in regard to the income received by the minors in his capacity as guardian. This contention, was not accepted by the appellate authorities. Hence this reference. We are of opinion that the question referred to us cannot arise in the assessment of the firm. This contention, was not accepted by the appellate authorities. Hence this reference. We are of opinion that the question referred to us cannot arise in the assessment of the firm. The firm is in no way concerned with how its individual partners are assessed. The second provision to section 30 of the Act expressly gives right of appeal to the aggrieved partner against the order of apportionment of the firm’s income. No such appeal was filed in the case. We therefore decline to answer the question on the ground that it does not and cannot arise in an appeal at the instance of the firm. It is needless to point out that the contention whether section 40 will have an overriding effect over the provisions of section 16(3) could be agitated on the individual assessment of Arumugha Mudaliar if the share income of his minor sons were sought to be included therein. We say nothing about the correctness of the contention. The assessee will pay the costs of the Department. Counsel’s fee Rs. 250. V.S. ------ Answered accordingly.