S.K. MAL LODHA, J.—The Income Tax Appellate Tribunal, Jaipur Bench, Jaipur (hereinafter referred to as the Tribunal) has referred the following question for our decision: "Whether on the facts and in the circumstances of this case, the Tribunal was justified in holding that the case of the assessee fell within the exception provided in s. 188 of the Income Tax Act, 1961 and was, therefore, covered by the provisions of s. 187 (1) read with s. 187 (2) of the Income Tax Act, 1961 and that, therefore, only one assessment should have been framed on the firm for the entire accounting period corresponding to assessment year 1970-71." The petitioner-assessee is a firm. Its accounting year for the assessment year 1969-70 ended on Diwali 1968 and the following persons were the partners of the firm on that date: 1. Fatehlal 2. Niranjan Kumar 3. Nirmal Kumar One of the partners, namely, Shri Fatehlal died on July 14, 1969 and on his death, his widow Smt. Asha Kumari was taken as a partner and she was allotted the share of profit as was being held by her deceased husband. This is evidenced by the partnership deed dated July 24, 1969. After the death of Fatehlal, the account books of the assessee were not closed. The Balance-sheet for the period up to the death of Fatehlal was not separately drawn. The books of accounts were closed at the end of the accounting period corresponding to assessment year 1970-71, i.e., on Diwali 1969. Profits in the various trading accounts were also worked out upto Diwali day and no attempt was made to bifurcate the profits in two parts i.e., one preceding the death of Fatehlal and the other succeeding his death Before the Income Tax Officer (I T.O.), it was submitted that two different assessments should be framed on the firm, one for the period upto the date of the death of the partner (Fatehlal) and the other after the date of the death of the partner to the end of the accounting period in accordance with s. 188 read with S. 170 of the Income Tax Act, 1961 (No. XLIII of 1961)(the Act herein). The I.T.O. did not accept the above contention of the assessee. The I.T.O. did not accept the above contention of the assessee. He, by his order dated December 7, 1972, opined that it was a case of change in the constitution of the firm as all the surviving partners had continued to do business as usual without any break and the widow of the deceased partner had joined the partnership with the existing capital and rights of the deceased. He, therefore, assessed the assessee firm on the total income for the entire accounting period. Aggrieved against the order dated December 7, 1972 of the I.T.O., the assessee preferred an appeal and the A.A.C. vide his order dated June 10, 1975 dismissed the appeal. While doing so, the A.A.C. relied on a decision of the Punjab & Haryana High Court in Dharam Pal Sat Dev vs. C.I.T. (1). Dissatisfied, the assessee firm appealed to the Tribunal. Before the Tribunal on behalf of the assessee, Addl. C.I.T. vs. Harjivandas Hathibhai(2) and M/s Dahi Laxmi Dal Factory vs. I.T.O , Sitapur (3) were cited. The Department relied on Commissioner of Income Tax Kerala vs. Kelukutty(4) and Commissioner of Income Tax, Andhra Pradesh vs. T. Veeragaghavulu Chetty & Sons Co. (5). The Tribunal upheld the view taken by the I.T.O. as well as the A.A.C. An application under s. 256(1) of the Act was moved before the Tribunal and that has led to this reference. 2. We have heard Mr. D.S. Shishodia, learned counsel for the assessee-firm as well as Mr. J.P. Joshi, learned counsel for the Revenue. 3. Cause (11) of the Partnership deed dated October 22, 1968, which was executed between Fatehlal, Niranjankumar and Nirmal Kumar is as follows: "(11) That the partnership is one at will " In the Partnership deed dated October 22,1968, there is no clause that after the death of one of the partners of the firm, it may be continued with the mutual consent of the partners by themselves or after taking a new partner or partners. As stated above, Fatehlal died on July 14, 1969 and after his death, a fresh Partnership deed dated July 24, 1969 was executed by the two surviving (remaining) partners and the widow of the deceased partner. As stated above, Fatehlal died on July 14, 1969 and after his death, a fresh Partnership deed dated July 24, 1969 was executed by the two surviving (remaining) partners and the widow of the deceased partner. The recital in the Partnership deed dated July 24, 1969 is to the effect that as Fatehlal has died on July 14, 1969, the remaining partners have decided to take Smt. Asha Kumari wife of Fatehlal in the partnership on the terms and conditions mentioned therein. This newly constituted partnership was made operative from July 15, 1969 i.e. the day following the death of Fatehlal who died on July 14, 1969. After the death of Fatehlal, account books were not closed. Nor the Balance-sheet upto the date of the death of Fatehlal was drawn. The same books of accounts were availed of by the newly constituted firm. Profits in the various trading accounts were worked out upto Diwali and they were not bifurcated into two parts: one preceding the death of Fatehlal and the other succeeding his death. On these facts, the question before the Taxing Authorities was whether the firm which was constituted by means of the Partnership deed dated October 22, 1968 stood dissolved and a new partnership had come into existence or despite the fact that a new firm was constituted by Partnership deed dated July 24, 1969 which was made operative from July 15, 1969, there was merely a change in the constitution of the firm within the meaning of s. 187(2) of the Act? 4. S. 42 of the Partnership Act deals with dissolution on the happening of certain contingencies. The relevant part of s. 42 of the Partnership Act is as follows: "S. 42 Dissolution on the happening of certain contingencies: Subject to the contract between the partners, a firm is dissolved:— (a) ....... ......... (b) ......... ........ (c) by the death of a partner; and (d) ...... ......." Dissolution under s. 42 of the Partnership Act is subject to the contract between the partners. If the Partnership deed provides for the continuance of the partnership after the death of a partner, then the firm will not be dissolved. From the Partnership deed dated October 22,1968, no such contract for the continuance of the partnership after the death of a partner can be inferred. 5. If the Partnership deed provides for the continuance of the partnership after the death of a partner, then the firm will not be dissolved. From the Partnership deed dated October 22,1968, no such contract for the continuance of the partnership after the death of a partner can be inferred. 5. Mr D S. Shishodia, learned counsel for the assessee-firm has relied on Venkateswara Stone Co. vs. C.I.T.,(6), Ganesh Dal Mills vs. C.l.T. (7), Addl. C.I.T. vs. N.K.M. Moose Bhoy Amin (8) and C.l.T. vs. Hind Agencies (9) and the Addl. Commissioner of Income Tax vs. M/s Enery Stone Manufacturing Co , Kuchaman Road (D.B.I.T. Ref. No. 4 of 1974, decided on December 5, 1984). The latter three decisions are the decisions of the Division Benches of this Court. On the other hand. Mr. J.P. Joshi, learned counsel for the Revenue has cited Ghella Dayal vs. Commr. of Income Tax, Bombay (10), Jessa Ram Fateh Chand (R.B.) vs. C.l.T. (11), Dharam Pal Sat Devs case (1), Kaithari Lungi Stones vs. C.T.T. (12), Jupitor Foundry and Machines vs. C.l.T. (13), Nandlal Sohanlal vs. C.l.T. (14) and Vimal & Amar Talkies vs. C.l.T. (15). 6. In Addl. C.l.T.s case (8), on behalf of the Revenue, reliance was placed on Nandlal Sohanlals case (14), wherein it was held by majority relying on the Supreme Courts Judgments in C.A. Abraham vs. I.T.O. (16) and C.l.T. vs. Angidi Chettiar (17) as under ; "that where a special provision was made in a taxing statute in derogation of the provisions of the Partnership Act, effect should be given to it and where no such provision had been made, liability for payment of tax could be determined by taxing into consideration the general provisions of the Partnership Act. Therefore, where the provisions of the I.T. Act are clear, resort cannot be had to the provisions of another statute like the Partnership Act. Therefore, s. 187 of the I.T. Act overrides the provisions of s. 42 of the Partnership Act and, therefore, the Tribunal was wrong in holding that there should be two assessments." The Punjab High Court followed its earlier view in Hoshiarpur Electric Supply Co. vs. C.I.T. (18) and also relied on Karupurula Suryanarayana Shetty and Sons vs. C.I.T. (19) and Addl. vs. C.I.T. (18) and also relied on Karupurula Suryanarayana Shetty and Sons vs. C.I.T. (19) and Addl. C.I.T. vs. Visakha Flour Mills (20) and dissented from the Allahabad High Court decisions in C.I.T. vs. Shiv Shankar Lal Ram Nath (21) and Dahi Laxmi Dal Factory vs. I.T.O. (22). In Addl. C.I.T.s Case (8), on behalf of the assessee, reliance was placed on C.I.T vs. Santilal Arvind Kumar (23), which has taken a contrary view and in which earlier decisions reported in Dahi Laxmi Dal Factory (22), C.I.T. vs. Kunj Behari Shyamlal (24), Addl. C.I.T. vs. Dilsukh Rai Madho Pd. (25), Kaithari Lungi Stores vs. C.I.T. (12), Mavukkarai (N) Estate Tea Factory vs. Addl. C.I.T. (26) Addl. C.I.T. vs. Thyagtisundara Mudaliar (27), Addl. C.I.T. vs. Vinayaka Cinema (28) and Mathurdas Govardhandas vs. C.I.T. (29) were relied on and dissent has been expressed from the earlier view of the Punjab High Court reported in Dharam Pal Sat Devs case (l), Jupitor Foundry and Machines (Knivas)s case (13), Addl. C.I.T.s case (20) and Nandlal Sohanlal vs. C.I.T. (14). 7. In C.I.T. vs. Satya Deo Omprakash (30), it was held that where a firm is dissolved either by agreement of partners or by operation of law on the death of a partner and another firm takes over the business, s. 187 (2) will not come into operation and two separate assessments will have to be made. The same view has been taken by the M.P. High Court in Ganesh Dal Mills case (7), in which they have dissented from the view of the Punjab High Court in Nandlal Sohanlals case(14) and relied on the decisions of the Andhra Pradesh, Allahabad and Madras High Courts The Orissa High Court in I. Ramkrishnaiah & Sons vs. C.I.T.(31) has also taken the same view and has agreed with the view expressed by the Delhi and Allahabad High Courts and taken a contrary view from that of the Punjab High Court. In Addl. C.I.T.s case (8). the view taken by the Punjab High Court in Nandlal Sohanlals case (14) was dissented. 8. The facts in this case are similar to the facts in Ganesh Dal Millss case (7), and Venkateswara Stone Co.s Case (6). The decisions in Venkateswara Stone Co.s case (6), Ganesh Dal Millss case (7), Addl. C.I.T.s case (8) and C.I.T.s case(9) and Addl. the view taken by the Punjab High Court in Nandlal Sohanlals case (14) was dissented. 8. The facts in this case are similar to the facts in Ganesh Dal Millss case (7), and Venkateswara Stone Co.s Case (6). The decisions in Venkateswara Stone Co.s case (6), Ganesh Dal Millss case (7), Addl. C.I.T.s case (8) and C.I.T.s case(9) and Addl. C.I.T.s case (supra) are applicable to the case on hand and after considering them, we are of opinion that the firm constituted by the Partnership deed dated October 22, 1968 stood dissolved on the death of Fatehlal who died on July 14, 1969 and after that, a new firm by means of the Partnership deed dated July 24, 1969 came into existence which was to be operative from July 15, 1969. The new firm constituted by means of the Partnership deed dated July 24, 1969 is a successor firm and two assessment will have to be made under s. 188 of the Act. 9. On the facts and in the circumstances of the case, the Tribunal was not right and justified in holding that the case was covered by the provisions of s. 187 (1) read with s. 187 (2) of the Act and, therefore, only one assessment should have been framed on the firm for the entire accounting period corresponding to assessment year 1970-71. 10. The aforesaid question is answered in the negative i.e. in favour of the assessee and against the Revenue. 11. In the circumstances of the case, we leave the parties to bear their own costs of this reference. 12. Let the answer be returned to the Tribunal in accordance with s. 260 (1) of the Act.