GOVINDA BHAT, CJ. ( 1 ) THE Income Tax Appellate Tribunal, Bangalore Bench has stated a case and referred under S. 256 (1) of the Income Tax Act, 1961 (hereinafter called the 'act') the following question of law for the opinion of this Court. " Whether on the facts and circumsatnqes of the Assessee's case when there was a change in the constitution of the Assessee firm the appellate Tribunal was justified in law in holding that only one assessment should be made. " ( 2 ) THE assessee is a partnership firm carrying on business in the manufacture of Agarbatties. The assessment year is 1966-67 for which the relevant previous year is the year ended 31-3-1966. There was a change in the constitution of the firm on 1-9-1965. Before the said date there were six partners in the firm. Thirteen more partners were introduced into the firm with effect from 1-9-1965. ( 3 ) THE, assessee filed a return on 1-8-1966 declaring an income of rs. 1,12,628. However, the said return was revised and two returns were filed in 31-10-1966; one return was for the period from 1-9-1965 to 31-3-1966. The contention of the assessee was that a new firm was constituted with effect from 1-9-1965 and therefore, for the aforesaid two periods two separate assessments shall be made. ( 4 ) THE Income Tax Officer rejected that contention and made an order of assessment on the assessee. The assessee's appeal to the Appellate Asst. Commissioner and a further appeal to the Income Tax Appellate Tribunal were both unsuccessful. According to the Appellate Tribunal, whenever a change has occurred in the constitution of a firm the assessment has to be made on the firm as constituted at the time of making the assessment and that only one assessment has to be made for one assessment year and not two separate assessments for the two periods. ( 5 ) THE Income Tax Officer had assessed the assessee in the status of an un-registered firm. The claim for registration of the firm was refused by the order of the Income Tax Officer dt. 9-4-1969. The said order was taken up on appeal to the Income Tax Appellate Tribunal which allowed it and directed the. Income Tax Officer to grant the registration for the assessment year, 1966-67. The claim for registration of the firm was refused by the order of the Income Tax Officer dt. 9-4-1969. The said order was taken up on appeal to the Income Tax Appellate Tribunal which allowed it and directed the. Income Tax Officer to grant the registration for the assessment year, 1966-67. Learned Counsel for the assessee produced before us a copy of the order of the Income Tax Officer dt. 30-6-1971 granting registration of the firm in pursuance of the order of the Appellate Tribunal. ( 6 ) IN order to appreciate the contention of the learned Counsel for the assessee, it is necessary to set out a few more facts. The net taxable income of the assessee for the period 1-4-1965 to 31-8-1965 was Rs. 74,443; net taxable income for the second period from 1-9-1965 to 31-3-1966 was rs. 68,913. On the Income Tax Officer granting registration to the firm the income of the two periods was apportioned amongst the partners. Section 182 read with S. 4 of the Act levies a tax on Registered Firms. The income tax together with surcharges etc, payable by the firm was determined at Rs. 14,127. That amount was fixed on the basis of the total taxable income of the firm which was Rs. 1,43,356. ( 7 ) IT was urged by Sri K. Srinivasan, learned Counsel for the assessee that every change in the constitution of a firm brings into existence a new firm; that although by virtue of S. 187 of the Act, the assessment has to be made on the firm as constituted at the time of making the assessment, there shall be two separate assessments for two different periods. According to the learned Counsel the income of the firm in existence prior to 1-9- 1965 is not the income of the new firm which came into existence on the re-constitution of the firm. He relied on the observation of Hegde, J. , in commr. of I. T. v. Bharat Engineering and Construction Co. ,67 ITR. (Mys.) 273, to the following effect :" For the purpose of assessment, every change in the constitution of a firm brings into existence a new firm. "that case did not lay down that whenever there is a change in the constitution of the firm, two separate assessment orders shall be made. ,67 ITR. (Mys.) 273, to the following effect :" For the purpose of assessment, every change in the constitution of a firm brings into existence a new firm. "that case did not lay down that whenever there is a change in the constitution of the firm, two separate assessment orders shall be made. Therefore, the decision relied on is not an authority for the proposition now contended for by the learned Counsel for the, assessee. ( 8 ) AN identical question as now presented before us came up before the kerala High Court in Excel Productions v. CIT. (Ker.) ,. 30 ITR. 356, In the said cose it was held that if the case falls under S. 187, separate assessment under S. 188 is ruled out. No case has been brought to our notice taking a different view. The material provisions of the Act are Ss. 187 (1) and 188 and they read :" 187. Change in constitution of a firm- (1) Where at the time of making an assessment under S. 143 or S. 144 it is found that a change has occurred in the constitution of a firm, the assessment shall be made on the firm as constituted at the time of making the assessment; provided that (i) the income of the previous year shall, for the purpose of inclusion in the total incomes of partners, be apportioned between the partners who, in such previous year, were entitled to receive the same; (ii) when the tax assessed upon a partner cannot be recovered from him, it shall be recovered from the firm as constituted at the time of making the assessment. (2) * * * * * 188. Succession of one firm by another firm.-Where a firm carrying on a business, or profession is succeeded by 'another firm, and the case is not one covered by S. 187, separate assessments shall be made on the predecessor firm and the successor firm in accordance with the provisions of S. 170. " ( 9 ) BY virtue of S. 187 (1) the assessment shall be made on the firm as constituted at the time of making the assessment notwithstanding that a change has occurred in the constitution of the firm. " ( 9 ) BY virtue of S. 187 (1) the assessment shall be made on the firm as constituted at the time of making the assessment notwithstanding that a change has occurred in the constitution of the firm. S. 188 provides for separate assessments on the predecessor firm and the successor firm where a firm carrying on business is succeeded by another firm and the case is not one governed by S. 187. The language of S. 188 is clear and leaves no room for doubt that separate assessments are required to be made on the predecessor firm, and the successor firm when a particular case is not one covered by S. 187. The case of change in the constitution of a firm is one covered by Sec. 187. It was not the case of the learned Counsel for the assessee that the case does not fall under S. 187, His submission was that it is no doubt true that notwithstanding the fact that a change has occurred in the constitution of the firm, the assessment shall be mado on the firm as constituted at the time of making the assessment; but sinqe the firm tax has to be deducted from the income of the firm and the balance has to be apportioned between the two sets of partners in existence during the relevant periods, the firm tax has to be assessed separately,-one for the period prior to the change in the constitution and the other for the subsequent period. According to him if the firm tax for the two periods is assessed separately, the total amount of tax will be much less than what it would be if the total not taxable income for the entire accounting period is taken into account and the assessment order is made. In the reference before us, we are not concerned with the allocation of income between the parties. That question was not before the Tribunal. The only question that was raised before the Tribunal was whether there shall be two separate assessment orders. The learned Counsel for the assessee. also argues that unless two separate assessments are made, the income cannot be property apportioned between the two sets of partners. In our opinion, the contention of the learned Counsel is clearly untenable. The only question that was raised before the Tribunal was whether there shall be two separate assessment orders. The learned Counsel for the assessee. also argues that unless two separate assessments are made, the income cannot be property apportioned between the two sets of partners. In our opinion, the contention of the learned Counsel is clearly untenable. The learned Counsel for the Department submitted that the net taxable income for the two periods was determined separately and the said income was apportioned between the partners. The correctness of the allocation or apportionment of profits between the two sets of partners is a matter that never arose before the Tribunal and therefore, that is rot a question that can be answered in the present reference. As already stated, the instant case is one, where there has been a change in the constitution of the firm and assessment is made on the firm as constituted at the time of making the assessment. It is clearly not a case of succession; of one firm by another firm. That being so, it is one covered by S. 187 (1) and consequently, the matter does not fall under S. 188. ( 10 ) THE view taken by the Tribunal therefore, was right. Accordingly, we answer. the question referred in the affirmative and against the assessee. The Department is entitled to its costs. (Advocate's fee, Rs. 250 ). --- *** --- .