S.N. ROTHO, A.M. This appeal has been filed by assessee against order dt. 8th Aug., 1984 of CIT (A), relating to asst. yr. 1982-83. assessee is registered firm whose previous year ended on 31st March, 1982 for asst. yr. 1982-83 which is now under consideration. It carried on business as Agents of M/s Vidarbha Distillers dealing in country liquor. assessee firm was constituted under Partnership Deed dt. 6th Aug., 1979 consisting of 7 partners. new partnership deed was executed on 1st Dec., 1981 with 8 partners. Shri Vinodkumar, who was partner under deed dt. 6th Aug., 1979 retired and two new partners, namely, Shri Rajesh Sahu and Shri Manoj Sahu were taken in as new partners and these facts were recorded in new deed dt. 1st Dec., 1981. assessee filed two returns of income before ITO, one for period 1st April, 1981 to 30th Nov., 1981 and other for period 1st Dec., 1981 to 31st March, 1982. case of assessee was that earlier firm was separate entity from newly constituted firm and so their income had to be assessed separately. ITO did not agree with stand of assessee. He made only one assessment on reconstituted firm which existed at time of assessment by taking as taxable income total of incomes for both periods as stated above. assessee appealed to CIT(A) and contended that ITO erred in his decision. It was urged that ITO apparently considered facts of this case as coming under s. 187 of IT Act, 1961, which according to assessee, was not correct. It was contended by assessee that earlier firm came to end and new firm took over so that it was case of succession of one firm by another as envisaged under s. 188 of Act. Though no deed of dissolution was executed, it was urged that this was case of dissolution by conduct of parties. CIT(A) found that assessee had not intimated about alleged dissolution of firm to Bank or to Excise Authorities. assessee had stated that it had informed only its purchasers and had closed accounts and had drawn up balance-sheet as on 30th Nov., 1981. CIT(A) held that case of assessee squarely came within definition of "change in constitution of firm" as laid down in s. 187(2) of Act. Consequently, he upheld action of ITO in making singly assessment as laid down in s. 187(1) of Act. Aggrieved by above decision of CIT(A), assessee is in appeal before us on ground that CIT(A) erred in including income of old firm in income of new firm while making assessment of latter. Shri L.S. Dewani, ld. representative for assessee took us through deed dt. 6th Aug., 1979 as well as deed dt. 1st Dec., 1981. He stated that there was no clause in earlier deed to effect that firm would continue to exist even if any partner retires or dies. However, he stated that conduct of parties in this case shows that earlier firm was dissolved and new firm came into being. He referred to facts that books of old firm were closed on 30th Nov., 1981 and that purchasers of assessee were informed about coming into existence of new firm. He urged that from above facts it has to be inferred that earlier firm was dissolved and new firm succeeded to old firm. In this connection, he relied on decision in case of CIT vs. E.H. Kathawala and Co. (1984) 38 CTR (Bom) 194: (1985) 151 ITR 348 (Bom) for proposition that when partner dies, partnership automatically comes to end so that it is case of dissolution falling under s. 188 of Act. He clarified that though in instant case no partner had died, but only partner retired, principle laid down in E.H. Kathawala & Co. (supra) equally applied to facts of this case because proviso to s. 187(1) was not on Statute Book during concerned assessment year in case of E.H. Kathawala and Co. (supra) and also during assessment year now under consideration in instant case. In other words, he urged that when partner goes out either due to death or otherwise, partnership comes to end and is succeeded by new firm so that two separate assessments had to be made as provided for under s. 188 of Act and for these proposition he relied on decision in case of E.H. Kathawala and Co. (supra). Alternatively, he raised second argument. He stated that even if it is held to be case of re-constitution of firm, income of two periods cannot be clubbed together. His point was that even in case coming under s. 187 two separate assessments had to be made. For this proposition he relied on separate judgment of Justice H.N. Seth in case of Dahi Laxmi Dal Factory vs. CIT and Anr. (1976) 103 ITR 517 (All) (FB). He drew our attention to page 535 of that report where it has been held that though assessment has to be made on firm as re-constituted at time of assessment, it is nowhere laid down in Act that income of old firm should be included in income of new firm while making such assessment. Further, he referred to t h e separate but concurring decision of Justice R.M. Sahai in case of Vishwanath Seth vs. CIT (1984) 38 CTR (All) 366 (FB): (1984) 146 ITR 249 (All) (FB) wherein learned Judge has referred to observations of Justice H.N. Seth in case of Dahi Laxmi Dal Factory (supra). He fairly pointed out that Justice Sahni has neither approved nor disapproved comments of Justice H.N. Seth in case of Dahi Laxmi Dal Factory (supra). Nevertheless, he urged that principle enunciated in separate judgment of Justice H.N. Seth has to be applied in present case, so that incomes of two periods cannot be clubbed together even if it is held that facts of present case amounted to mere change in constitution of firm not amounting to succession of one firm by another. Shri G.M. Deulkar, ld. representative for Department, on other hand, supported order of CIT(A). He took us through order of CIT(A) and urged that this was clear case of reconstitution of firm as defined under s. 187(2) of Act. Referring case of E.H. Kathawala and Co. (supra), he contended that reported case dealt with death of partner which fact distinguishes it from instant case. Regarding alternative argument, he submitted that with due regard to Justice H.N. Seth, majority judgment of Dahi Laxmi Dal Factory (supra) has to be followed and minority judgment has to be ignored especially when s. 187(1) clearly states that there should be only one assessment made in respect of assessment year under consideration and that single assessment had to be made on new firm as constituted at time of assessment. He urged that s. 187 has been enacted only to clarify that certain changes in deed of partnership should be regarded as mere changes in constitution of firm and to ensure that single assessment is made in respect of single previous year. In this view of matter, he urged that order of CIT(A) deserved to be upheld. We have carefully considered contentions of both parties as well as facts on record. question that is raised in this appeals is whether on retirement of partner and induction of two new partners, earlier firm can be said to have come to end so that s. 187 of Act will not apply and s. 188 of Act will apply. Sec. 187(2) states that if one of partners ceased to be partner or one or more new partners are admitted, in such circumstances that one or more of persons, who are partners in firm before change continues as such after change, then it is to be regarded as change in constitution of firm. Apparently, this condition is satisfied in this case because Shri Vinod Kumar old partner, has ceased to be partner in new firm, two new partners, namely, Shri Rajesh Sahu and Shri Manoj Sahu have become partners in new firm and six of old partners continued to be partners in new firm. Since all three conditions are satisfied, case evidently comes within s. 187(2). Hence, this case has to be regarded as change in constitution of firm and not dissolution of firm. We have gone through decision in case of E.H. Kathawala and Co. (supra) relied on by assessee for proposition that facts of instant case come under s. 188 of Act. However, we find that facts of said case are distinguishable on facts. In that case, there was death of partner. Sec. 42 of Partnership Act states that death of partner automatically dissolves firm unless there is contract to contrary. decision in that case rested upon that crucial fact. There was death of partner and there was no contract to contrary. In case before us, there is no death of any partner. One partner has retired and two partners have come in. Partnership Act envisages such changes in s. 32 of Partnership Act, but it does not say that retirement of partner would bring partnership to end. In other words, when partner retires, partnership does not come to end under Partnership Act. Nor is there any such clause in two partnership deeds executed in case before us. Admittedly, no deed of dissolution has been executed. Then, question arises as to whether dissolution can be inferred by conduct of parties, namely, closing of accounts on date of drawing up of new deed. In our opinion, mere fact that accounts were closed does not lead to conclusion that earlier firm was dissolved. On other hand, we find that new firm carried on same business as before evidently at same premises. Neither Bank not Excise Authorities were informed about alleged dissolution or succession. Evidently, six old partners, who continued to be partners in new firm, did not consider it necessary to inform Bank or Licensing Authorities about alleged coming into existence of new entity in place of old entity who was doing business. This conduct of assessee, in our opinion, clearly overrides closing of accounts and points to inference that parties concerned did not consider change to be case of succession. Even if they have so considered (which they have not), we are still inclined to hold that facts come squarely within definition of s. 187(2) and this legal definition will override alleged conduct of parties. As we have already held, definition of s. 187(2) leaves no doubt in our mind that it is mere change in constitution of firm and not case of succession of one firm by another. Now, we come to alternative argument raised by ld. counsel for assessee. According to him, even if it is case of reconstitution of firm, incomes for two periods cannot be clubbed together in one assessment. He relies upon aforesaid decision of Justice H.N. Seth in case of Dahi Laxmi Dal Factory (supra). We have very carefully considered this argument, but we are unable to agree with same. In case of Dahi Laxmi (supra), Justice Seth has no doubt, observed that income for two periods, namely, before and after re-constitution cannot be clubbed together because there is no authority for same in Act. In case of Vishwanath Seth (supra), Justice Seth was party to majority judgment. We find no comment in majority judgment as to comment of Justice Seth in case of Dahi Laxmi (supra). That comment rested upon proposition that newly constituted firm was separate entity than earlier firm and so income of two different entities cannot be assessed in one assessment, even though both assessments may have to be made separately on one of them. If that were so, then in case of Vishwanath Seth (supra) it should have been held by majority that two entities were different and new firm could not be penalised for concealments of earlier firm. On contrary, majority judgment in Vishwanath Seth (supra) to which Justice Seth was party, clearly states that under general law of partnership as well as under s. 187 of Act, 1961, in case of re-constitution of firm, it retains its identity and continues and is assessable in respect of income of entire previous year. In view of this finding in case of Viswanath Seth (supra), observations of Justice Seth in case of Dahi Laxmi Dal Factory (supra) must be held to be impliedly overruled especially when Justice Sahai in case of Viswanath Seth (supra) has not approved comments of Justice Seth in case of Dahi Laxmi Dal Factory (supra) even though he has made specific reference to same. Consequently, we are unable to apply comments of Justice Seth in case of Dahi Laxmi Dal Factory (supra) to facts of instant case. There is another aspect of matter before us. Sec. 187(1) says that whenever there is change in constitution of firm within meaning of s. 187(2), "then assessment" shall be made on firm as constituted at time of making assessment. Once case comes under s. 187(2) (and we have already held that facts of instant case come under s. 187(2) only o n e assessment has to be made because "the assessment " is in singular number. Had intention been otherwise, section would have stated that there should be as many assessments as there are firms during previous year. We find that similar intention has been expressed in s. 161(1) of Act which states that there should be as many assessments as there are beneficiaries. In contrast, s. 187(1) refers to "the assessment" which means only one assessment. We find support for this conclusion of ours from decision of Hon ble Bombay High Court in case of E.H. Khatawala & Co. (supra). At page 351 of said report it has been laid down: "Sec. 187 provides that where it is found that mere change has occurred i n constitution of firm, assessment is to be made on firm as constituted at time of making assessment. On other hand, where firm has been succeeded by another firm and case if one not covered by s. 187, separate assessments are required to be made on predecessor firm and successor firm." It is evident that first sentence in above quotation is in contradistinction to second sentence therein. second sentence refers to separate assessments while first sentence refers to "the assessment" meaning only one assessment. implication is quite clear, namely, that in case coming under s.187 only one assessment has to be made. Respectfully following aforesaid decision of Hon ble Bombay High Court, we come to conclusion that in instant case, which has been found by us to be case under s. 187, assessment has been correctly made by ITO by making only one assessment for entire previous year in hands of new firm. For above reasons, we uphold order of CIT(A). In result, appeal is dismissed. *** CENTRAL INDIA DISTRIBUTORS v. INCOME TAX OFFICER