R.S. Pathak, J. - (1.) THE Income-tax Appellate Tribunal has referred the following questions: "1. Whether the appeals filed by Kishorilal Khemka before the Appellate Assistant Commissioner from the assessment orders made in the case of the Bharat firm, which had become the subject-matter of appeals by another partner, Joti Bhushan Gupta, and whose appeals were earlier disposed of by the Appellate Assistant Commissioner, were competent ?
(2.) WHETHER Kishorilal Khemka has been rightly held to be a partner of the Bharat firm ?" 2. On December 1, 1942, a partnership firm was constituted consisting of Raja Jwala Prasad and Jyoti Bhushan Gupta for undertaking engineering and construction works under the name and style "Bharat Engineering and Construction Company". The terms of the partnership were reduced to writing by a deed dated February 6, 1943. The deed contained special provisions relating to the rights and liabilities of Raja Jwala Prasad, and paragraph 15 declared: "The second party (namely, Jyoti Bhushan Gupta) shall be entitled to take Mr. Kishorilal Khemka, Mr. Dwaraka Prasad Jhunjhunwala and Mr. Venkatla G. Pittie as partners in the firm but without affecting the rights and liabilities of the first party in any way under this deed." For the assessment years 1944-45, 1945-46 and 1946-47 (the relevant accounting periods being the years ending March 31, 1944, March 31, 1945 and March 31, 1946), the firm filed returns of its income in which the partners disclosed included Kishorilal Khemka. There is nothing in the statement of the case to show how the firm consisting originally of Raja Jwala Prasad and Jyoti Bhushan Gupta came to its present constitution so as to consist of Jyoti Bhushan Gupta, Kishorilal Khemka and D. P. Jhunjhunwala. We can only guess that by virtue of paragraph 15 of the partnership deed o! February 6, 1943, Kishorilal Khemka and D. P. Jhunjhunwala were taken in as partners, so that the firm then consisted of four partners including Raja Jwala Prasad, and subsequently Raja Jwala Prasad died reducing the partnership to its present composition. It is not disputed before us that the firm under consideration for the relevant assessment years was a continuation of the original firm. The Income-tax Officer assessed the firm for the assessment years 1944-45, 1945-46 and 1946-47 in the status of an unregistered firm and showed Kishorilal Khemka as one of the partners. The assessments were challenged in appeal by Jyoti Bhushan Gupta in the name of the firm before the Appellate Assistant Commissioner and thereafter he filed second appeals before the Income-tax Appellate Tribunal.
(3.) ABOUT the time when Jyoti Bhushan Gupta filed the appeals before the Appellate Assistant Commissioner, Kishorilal Khemka also filed appeals against the assessments. These appeals remained pending and were disposed of some time after the appeals filed by Jyoti Bhushan Gupta were decided. The Appellate Assistant Commissioner dismissed the appeals filed by Kishorilal Khemka as incompetent in the view that, as one set of appeals had already been filed by the firm against the assessment orders, namely, the appeals filed by Jyoti Bhushan Gupta, a second set of appeals against the assessment orders was not competent. The Appellate Assistant Commissioner observed that two appeals against the same assessment order, one by the firm and the other by one of the partners, were not "envisaged in law. The Appellate Assistant Commissioner also held that having, regard to the material before him, it was clear that Kishorilal Khemka was a partner of the firm. It appears that some reference to the execution of a supplementary deed dated February 15, 1943, was made under which Kishorilal Khemka was taken in as a partner, but a copy of this deed was never produced before the income-tax authorities. During the pendency of the appeals before the Appellate Assistant Commissioner, Kishorilal Khemka died and the proceedings were carried on by his son, Mohanlal Khemka. Against the orders of the Appellate Assistant Commissioner three appeals were filed by Mohanlal Khemka as legal representative of Kishorilal Khemka. The three appeals were dismissed by the Tribunal.;