1. This is an application under Section 81A(2) of the Gold (Control) Act, 1968 for rectification of the Order Nos. A/146 to 149/86-NRB, dated 31-3-1986.
2. Adjudicating the Show Cause Notice dated 24-11-1981 the Collector, Central Excise, New Delhi vide his Order-in-Original No. 11/83, dated 20-5-1983 ordered as follows:- ". . . In view of the above circumstances, I, therefore, order confiscation of primary gold weighing 342.000 gms. recovered from Murli Das Patel under Section 71 of Gold (Control) Act, 1968 and impose a penalty of Rs. 10,000/- (Rupees Ten thousand only) on him under Section 74 of the Gold (Control) Act, 1968. I also impose a personal penalty of Rs. 5,000/- (Rupees Five thousand only) on Shri Narain Das Patel under Section 74 of the Act, ibid. I also hold that Shri Jagan Nath who was knowingly involved in handling, possessing or otherwise dealing with gold at an unauthorised refinery has contravened the provisions of the Gold (Control) Act, 1968, I, therefore, impose a penalty of Rs. 15,000/- (Rupees Fifteen thousand only) upon him under Section 74 of the Gold (Control) Act, 1968.
A shortage of 701.600 gms. was noticed in the statutory records of M/s. Nandlal Jagan Nath. Even if due credit is given to the explanation given by the defendents in respect of the jewellery given on approval to Devinder Kumar Arora, there is nothing to disclose that the gold melted and found in the Kothali at the premises of Murli Das Patel came out of the recorded stock of Nand Lal Jagan Nath and not out of any other stock held by him. It is also a fact that the explanation given regarding 125.000 gms. or ornaments having been given to a Karigar is most unsatisfying. It is, therefore, clear that M/s. Nand Lal Jagan Nath have been acting in gross violation of provisions of Gold (Control) Act, 1968 and I impose upon them a personal penalty of Rs. 10,000/- (Rupees Ten thousand only) under Section 74, ibid. . . ." 3. Against the said Order of adjudication S/Shri Jagan Nath, Narain Dass Patel, Murli Dass Patel and M/s. Nandlal Jagan Nath filed their separate appeals before this Tribunal, which were disposed of by this Tribunal by its common Order No. A/146 to 149/86-NRB, dated 31-3-1986.
By this Order the Tribunal dismissed the appeal filed by M/s. Nandlal Jagan Nath (applicants herein) and its partner Shri Jagan Nath. Appeals filed by S/Shri Murli Dass Patel, Narain Dass Patel were also rejected except that the amount of personal penalty was reduced.
5. Shri M. Chandrasekharan, learned counsel for the applicants submitted that against the said Order No. A/146 to 149/86-NRB, dated 31-3-1986 passed by this Tribunal M/s. Nandlal Jagan Nath (applicants herein) and Shri Jagan Nath filed their Writ Petition No. 1206/1987 before the Hon'ble Delhi High Court challenging the order as ab initio void on the ground that in adjudicating proceedings, penalties cannot be imposed on the firm and on its partners at the same time and that this Writ Petition was dismissed as withdrawn on 13-5-1987 with liberty to move this Tribunal for rectification of its Order. Hence the present application for rectification by the firm only.
6. Shri M. Chandrasekharan, learned counsel for the applicants submitted that the following two issues require the rectification of the said Order dated 31-3-1986 passed by this Tribunal since these two issues are mistakes apparent from the record - (1) "That as per Section 2(t) of the Gold (Control) Act, 1968 read with Rule 3 Schedule I of the Gold Control (Specification of Standard Gold Bars and Conditions of Refining) Rules, 1968, the refined gold - Vithur is of specification 995.0 fineness. Report of the sample sent to the Government of India Mint, Bombay found the purity of the gold as 858.2 fineness. Therefore, the seized gold cannot be said to be refined gold and hence melting and refining cannot be part of the same process as held by the Collector and upheld by the Hon'ble Appellate Tribunal." (2) "That as stated earlier, the imposition of penalty on both the applicant partnership firm and the partner simultaneously is erroneous as has been held by the Calcutta High Court in Tarak Nath v. Union of India (supra) following the decision of the Supreme Court in Dulichand's case (supra)." 7. Arguing on the first issue learned counsel for the applicants submitted that the findings of the Collector and upheld by the Tribunal that the seized gold weighing 342.000 gms. was not the melted gold but the refined gold and melting is also a part of the refining process is not correct in view of the test report given by the Mint certifying the purity of the gold as 858.2 fineness. While elaborating the arguments he submitted that according to Section 2(t) of the Gold (Control) Act, 1968 read with Rule 3 Schedule I of the Gold Control (Specification of Standard Gold Bars and Conditions of Refining) Rules, 1968, the refined gold - Vithur is of specification 995.0 fineness and therefore the seized gold cannot be said to be refined gold and hence melting and refining cannot be the part of the same process as held by the Collector and upheld by the Tribunal. In reply Shri Rakesh Bhatia, learned SDR submitted that from the issue (question) posed by the learned counsel for the applicants it is clear that in the garb of rectification application the applicants are trying to challenge the findings of the Tribunal for which the remedy lies elsewhere.
8. We have considered the arguments. From the adjudication order and the order passed by this Tribunal it is clear on a tip off that S/Shri Murli Das Patel and Narain Das Patel were running an illegal refinery at the top floor of House No. 2267, Kinari Bazar, Delhi the said premises was searched and a refinery was found to be in operation there. On further search, primary gold (Vithur) weighing 342.000 gms.
of 23 cts. purity was recovered and at the time of visit Shri Murli Das Patel was present in his refinery and was putting the above said refined gold (Vithur) in Kothali and the same was seized. Besides this, air-blower, Kothali, sample of Acid and 'Suhaga' used by Shri Murli Das Patel to refine the said gold were also seized by the officers. It is also on record that subsequent to the seizure Shri Jagan Nath claimed the seized gold by stating that the seized primary gold was prepared by Shri Murli Das Patel by melting the gold ornaments brought by him which was the part of their stock and trade. Show cause notices were issued to the said Shri Murli Das Patel, Jagan Nath, the applicants and the others. Murli Das Patel was charged for contravening the provisions of Sections 8, 11 and 17 of the Gold (Control) Act, 1968 inasmuch as (he) refined and kept seized primary gold weighing 342.000 gms. in his possession, custody and control unauthorisedly. Likewise Shri Jagan Nath and the applicants firm were charged for contravening Sections 8,36 and 55 of the Gold (Control) Act and ultimately the adjudicating authority found them guilty after usual adjudication proceedings.
During the adjudication proceedings it was argued that in view of the test report of the Mint no violation is proved in view of Section 2(t) of the Gold (Control) Act. Negating this argument the adjudicating held as follows : "The impugned gold was got tested from India Government Mint, Bombay and the assay report indicated the fineness less than the purity ascertained at the time of seizure, by the touch stone method. An attempt has been made by the defendents to create an erroneous impression that the gold was only 20.6 carats and hence no violation is caused. Firstly melting is only one of the ad-interim processes in refining; refining means operations where impure metals or mixtures are treated by electrolysis, distillation, liquation, pyrometallurgy, chemical or other methods to produce metals of a higher purity. Under Section 2(t) of the Gold (Control) Act, 'refinery' means a place where gold is melted, assayed, refined, alloyed or extracted or subjected to any other process. The term carat similarly, is only a standard of fineness for gold. The standard for pure gold is 24 carat; 20.6 carats means 3.4 parts of alloy. The fineness of pure gold can be reduced by addition of alloy; it can be increased, by reduction or distillation of alloy.
So long as the alloy is less than 15 parts i.e. gold of a purity of not less than 9 carats, whether virgin, melted or remelted, wrought or unwrought; it is covered under the Gold (Control) Act. It is a fact that the impugned gold of 20.6 carats remains to be gold in terms of Section 2 of the Gold (Control) Act, 1968. Shri Murli Das Patel was neither a certified goldsmith nor holding a gold dealer licence. He received gold ornaments from Shri Jagan Nath of M/s.
Nand Lal Jagan Nath, licensed Gold Dealer and melted/refined the same unauthorisedly. It is thus evident that Shri Murli Das Patel contravened Section 8,11 and 17 of the Gold (Control) Act, 1968 and the charges levelled against him in the show cause notice stand proved beyond any doubt." 9. In the appeal the Tribunal upheld these findings are rejected the appeals filed by the applicants and others after discussing the respective arguments advanced by the parties. Brushing aside the contention advanced on behalf of the appellant Shri Murli Das Patel therein that he had only melted the gold and had not refined it the Tribunal, inter alia, recorded its findings as follows :- "In respect of Shri Murli Das, it has been strenuously argued that he had only melted the gold and had not refined it. Apart from the fact that melting is also part of the refining process, as urged by the Deptt., it is also seen that this in no way forms a defence against the other charges against him of unauthorised possession/custody of the primary gold and of unauthorised preparation of primary gold. It is also in evidence that Murli Das was carrying on such unauthorised processing/melting of gold for other gold dealers also. As for appellant Narain Das, he cannot be total ignorant of the goings on in his premises especially considering that Murli Das is a close relation and it appears that the house owner had even occasion to protest against silver refining work being done in the premises. In the circumstances, the order of the Collector is correct is law." 10. In view of the above, it is clear that there is no mistake apparent from the record calling for any rectification, and if the applicants are aggrieved with these findings which are based on the appreciation of evidence on record the remedy lies elsewhere.
11. As regards second issue Shri M. Chandrasekharan, learned counsel for the applicants submitted that the imposition of penalty on both, that is to say, partnership firm (applicants herein) and its partner simultaneously is erroneous as imposition of penalty also upon the firm amounts to twice punishing its partners for the same sets of acts. To support his contention he cited the case of Tarak Nath v. UOI, AIR 1975 Cal. 337 wherein the judgment rendered by the Hon'ble Supreme Court in the case of The Commr of Income Tax, West Bengal v. A.W. Figgis & Co., AIR 1953 SC 455 was relied upon. In reply Shri Rakesh Bhatia, the learned SDR submitted that the same argument was advanced by the applicant at the time of hearing of the appeal on merits and the Tribunal found both the firm (applicant herein) and its partners guilty of contravening the provisions of the Gold (Control) Act. Consequently submitted the learned SDR that there is no error apparent from the record requiring any amendment by way of rectification.
12. We have considered the arguments. From the order dated 31-3-1986 passed by this Tribunal, it would appear that the role of the applicant firm and its partner Shri Jagan Nath was considered separately and after appreciating the evidence on record the Tribunal concluded as follows:- ". . . In this case the charge of non-accountal and un-authorised movement of gold without complying with statutory requirements by the gold dealer is admitted. Shri Jagan Nath did not have any voucher to cover the taking of the gold to Shri Murli Das. The appellant firm and Jagan Nath have also not been able to show with reference to the entries in the statutory accounts and voucher the licit acquisition and delivery of gold to either Murli Das who was not a certified goldsmith or a dealer, or, even to the goldsmith Shri Chander to whom the dealer, according to his explanation, seems to have delivered gold without any voucher in gross violation of Section 36 of Gold (Control) Act and also when he did not even know the goldsmith's address. The production of the photocopy of the relevant page of GS13 accounts subsequently in the proceedings can hardly have any evidentiary value. Shri Jagan Nath, the partner of the dealer's firm had, by his own admission, taken gold to an unauthorised person and the explanation that it was for melting ornaments which had gone out of fashion, does not in any way mitigate the offence. Shri Jagan Nath also had been responsible according to their explanation for delivering gold to goldsmith Chander without voucher and when he did not know his address, all of which show the serious lapse in observing the obligations cast on licensed gold dealers under the Gold (Control) Act." 13. When the attention of the learned counsel for the applicant was drawn to the aforesaid finding recorded by the Tribunal, he submitted that the Tribunal ought to have recorded its finding expressly on the question as to whether the imposition of the penalty on the firm and its partners amounts to double penalty or not, and neither by inference nor by implication it can be said that the Tribunal considered the said argument and rejected it. Hence failure to record the express finding on the said issue amounts to an error apparent from the record. In reply Shri Rakesh Bhatia, the learned SDR submitted that from the findings as set out above, it should be concluded that the Tribunal considered the arguments and rejected it as the said course is permissible under the law and therefore, there is no error apparent from the record calling for any rectification.
14. After giving our due consideration to the arguments so advanced, we feel that even if the applicant is permitted to raise the said contention that there is an error apparent from the record, it does not require any rectification or amendment in the order passed by this Tribunal.
15. In the case of Tarak Nath v. UOI., supra the learned Single Judge of the Calcutta High Court heavily relying upon the observations made in the case of The Commr. of Income Tax v. A. W. Figgis & Co., supra by the Hon'ble Supreme Court that "under the law of partnership a firm has no legal existence apart from its partners and it is merely a compendious name to describe its partners", and also the observations made in the case of Dulichand Laxminarayan v. Commr. of Income Tax, Nagpur, AIR 1956 SC 354 holding that "a partnership firm cannot enter into a partnership with another firm or Hindu undivided family or individual", expressed his inability to accept the position that a partnership is a 'person' within the meaning of Section 3(42) of the General Clauses Act", and observed:- "17 . . . Therefore, no exception can be taken to imposition of penalties individually upon them. But since the firm is not a legal entity and Section 140 of the Customs Act was inapplicable to the adjudication proceeding, the Additional Collector of Customs by imposing penalties also upon the firm has really twice punished the petitioners Nos. 1 to 4 for the same sets of acts. Therefore, although I propose to sustain the imposition of penalties under the Customs Act and the Defence of India (Gold Control) Rules upon the petitioners 2 to 4, the penalties of fine imposed upon the petitioner No. 5 firm should be quashed".
16. It has to be stated here that the Hon'ble Supreme Court in the case of Commr. of Income Tax v. S.V. Angidi Chettiar, AIR 1962 SC 970 held that though the expression 'person' is defined in Section 2(a) of the Income-tax Act as including "a Hindu undivided family and a local authority" that evidently is not an exhaustive definition and recourse is permissible to the General Clauses Act which says in Section 3 (42) that a 'person' includes "any company or association or body of individuals whether incorporated or not". A firm is manifestly a body of individuals and would therefore fall within the definition of 'person', and may be exposed to an order for payment of penalty in the circumstances set out in clauses (a), (b) and (c) of Section 28 of the Income-tax Act. Thus it stands concluded by the Hon'ble Supreme Court that a partnership firm is a 'person' within the meaning of Section 3 (42) of the General Clauses Act. It is interesting to note that a Division Bench of the Allahabad High Court in the case of Sharma & Co.
v. The Income Tax Commissioner, AIR 1965 Allahabad 376 also relied upon the said judgment of the Supreme Court rendered in the case of The Commissioner of Income Tax v. A. W. Figgis & Co., supra and held otherwise, that is to say, the Division Bench held that a firm can be charged as a distinct assessable entity under the Income Tax Act. While holding so the Division Bench relied upon the following observations of the Supreme Court made in the case of The Commissioner of Income Tax v.A.W. Figgis & Co., supra.
"It is true that under the law of partnership a firm has no legal existence apart from its partners and it is merely a compendious name to describe its partners....But under the Income-tax Act the position is somewhat different. A firm can be charged as a distinct assessable entity as distinct from its partners who can also be assessed individually. Section 3 which is the Charging Section is in these terms ....The partners of the firm are distinct assessable entities, while the firm as such is a separate and distinct unit for purposes of assessment." 17. The Full Bench of the P&H High Court also took the same view in the case of Nandlal Sohanlal v. The Commissioner of Income-tax, AIR 1977 P & H, 320. In that case the Full Bench of the P&H Court held that in view of the definition of the word "person" in Section 2(31) of the Income-tax Act, a firm, for the purpose of the Income Tax Act, has a separate personality and existence independent of the partners who constitute it and is taxable as a unit. And further added that where a special provision is made in a taxing statute in derogation of the provision of the Indian Partnership Act, the effect is given to it and where no such provision had been made decision regarding liability for payment of tax is made while taking into consideration the general provision of the Indian Partnership Act. It is, therefore, obvious that where the provisions of the Income-tax Act are clear, resort cannot be had to the provisions of another statute like the Indian Partnership Act. For this proposition the Full Bench relied upon the decisions of the Supreme Court rendered in the case of C.A. Abraham v. The Income Tax Commissioner, AIR 1961 SC 609; The Commissioner of Income Tax v.S.V. Angidi Chettiar, AIRState of Punjab v.Jullundur Vegetables Syndicate, AIR 1966 SC 1295. A Full Bench of the Delhi High Court also took the same view in the case of Chief Commissioner of Sales Tax v. Raj Kishan, 1982 Tax L.R. 3100. The Full Bench in that case while dealing with the meaning of the word 'dealer' as defined under the Bengal Finance (Sales Tax) Act (6 of 1941 as made applicable to Union Territory of Delhi) held that under the general law a firm is not a distinct legal entity but is only a compendious name for all its partners. But a firm which carries on the business of selling goods would be a dealer within the meaning of the Act as the word "person" would include a firm being a body of individuals by force of Section 3 (42) of the General Clauses Act, 1897. It further held that there is nothing repugnant in the subject or context to exclude the application of this definition contained in the General Clauses Act, 1897. More recently a Division Bench of the Delhi High Court in the case of Talwar Diamonds v. Union of India - 1987 (28) E.L.T. 331 had an occasion to deal with the specific question as to whether a firm under the Gold (Control) Act, 1968 have a juristic personality and is a 'person' capable of holding a licence. In that case it was contended by the Government that a firm does not have a juristic personality and that when a licence is granted in the name of a firm, it is really a licence granted to all the partners of the firm jointly. Repelling the contention their Lordships held as follows:- "6. We are unable to accept the contention urged on behalf of the department. A perusal of the Gold (Control) Act clearly shows that a licence under the Act is to be granted to a 'dealer'. 'Dealer' is defined in Section 2(h), as including a Hindu Undivided Family, a local authority, company, society registered under the Societies Registration Act, a co-operative society, a club, firm or other association of persons. It is, therefore, clear that, whether a firm can be treated as a legal person or not in general law, for the purposes of Gold (Control) Act a firm is a legal entity. In fact it is common ground that licences are applied for by the firms and are granted to firms. Indeed in the case of M/s. Talwar Jewellers licence has been granted in the name of the firm itself. If the present objection had not been raised, the petitioner firm would have also been granted a licence. The Act clerly envisages a licence in the name of a firm. This is also clear from the provisions of Section 52 of the Act. This section provides that, when there is a change in the constitution of a partnership, the licence granted to a firm as a dealer will become invalid unless the change has been approved by the Administrator. This section makes it clear that the licence it granted in the name of the firm itself but that the change of the constitution of a partnership should be approved by the Administrator if the licence in the name of the firm is to continue. Even the terms of Rule 2 (dd) on which reliance is placed by the respondents clearly show that the stand taken by the department is untenable. The last part of the rule which we have extracted earlier postulates a firm holding a licence. It is, therefore, clear in the context of the Gold (Control) Act, that in the case of firm, the "person" who holds a licence is the firm itself. As under the Income-tax Act, so under this Act a firm is also a "person" capable of holding a licence. The terms of Rule 2(dd) do not, therefore, apply where the applicant firm is not the holder of another gold dealer's licence, or perhaps a case where all the partners of the applicant firm are partners in another firm holding a valid licence. Our conclusion is also fortified by the form prescribed for application for a licence under the Gold Control (Forms, Fees and Miscellaneous Matters) Rules, 1968 where one of the columns requires an applicant to name the partners of the firm."India Sea Foods v. Collector of Customs and Central Excise, Cochin - 1984 (16) E.L.T. 243 (Kerala) it was argued before the Division Bench that the imposition of penalty under Section 112 of the Customs Act on the firm as well as on the Managing partner was unjustified and unsustainable in law. While repelling the contention their Lordships of the Kerala High Court observed as follows:- "We have extracted Section 112 (a) of the Act which alone is the material part thereof. Under the provisions of that clause the penalty can be imposed on any person, who in relation to any goods does or omits to do any act which would render such goods liable to confiscation. It can also be imposed on any one who abets the doing of omission of such an act. We do not see, and or unable to understand why the firm and the partners thereof cannot both be adjudged guilty of contravention or be subjected to a penalty under the provisions of the Act. It is possible to find, as in this case, the firm guilty of an act or omission which renders the goods liable to confiscation, and at the same time to find the partners thereof guilty of abetment in the doing or omission of such act. It seems possible again, to find the legal entity of a partnership liable for the act or contravention, and at the same time to hold the human agency through which it acts, also responsible for the same." 19. However, the matter does not rest here. The question as to whether the enalty can be imposed on a partnership firm is no longer res Integra. A penalty can be nposed upon a partnership firm appears to have been concluded by the recent judgment of the Hon'ble Supreme Court rendered in the case of Raj Bahadur v. Director of Enforcement - 1987 (12) E.C.R 423. In that case a penalty of certain amount was nposed upon the partnership firm for contravening the provisions of Section 12 (2) of le Foreign Exchange Regulation Act, 1947. In that case it was contended that penalty cannot be imposed upon the firm as the word "whoever" occuring in Section 23(1), prior to its amendment, of the Foreign Exchange Regulation Act, 1947 only includes a natural person and does not include association of persons such as a partnership firm.
Repelling the contention their Lordships held that the word "whoever" means not only a natural person but also an association of persons such as a partnership firm. On the point of clarity it may be stated that under the Gold (Control) Act a partnership firm can hold a licence and therefore is a dealer. In the instant case the appellant firm is a gold dealer licensee under Section 27 of the Gold (Control) Act. The word "dealer" has been defined u/s 2 (h) of the Gold (Control) Act as any person who carries on directly or otherwise, the business of making, manufacturing, preparing, repairing, polishing, buying, selling, etc.
and includes a Hindu Undivided Family, local authority, company, society registered under the Societies Registration Act, co-operative societies incorporated under any law with respect to co-operative societies, club, firm, or other association of persons which carries on such business. Thus, no exception can be taken to imposition of penalty upon the firm and its partners.
20. In the instant case separate show cause notices were issued to the applicant firm M/s. Nandlal Jagan Nath and its partner Shri Jagan Nath.
In the show cause notice the applicant firm and its partner were charged separately and after the usual adjudication proceedings the adjudicating authority found the applicant firm guilty. The operative portion of the adjudication order holding the firm guilty runs thus:- "A shortage of 701.600 Gms. was noticed in the Statutory records of M/s. Nand Lal Jagan Nath. Even if due credit is given to the explanation given by the defendents in respect of the Jewellery given on approval to Devinder Kumar Arora, there is nothing to disclose that the gold melted and found in the Kothali at the premises of Murli Das Patel came out of the recorded stock of Nand Lal Jagan Nath and not out of any other stock held by him. It is also a fact that the explanation given regarding 125.000 Gms. or ornaments having been given to a Karigar is most unsatisfying. It is, therefore, clear that M/s Nand Lal Jagan Nath have been acting in gross violation of provisions of Gold (Control) Act, 1968 and I impose upon them a personal penalty of Rs. 10,000 (Rupees Ten thousand only) under Section 74 ibid".
21. Likewise the adjudicating authority also found Shri Jagan Nath, partner of the firm guilty and imposed the penalty. The operative portion of the adjudication order relating to Shri Jagan Nath runs as follows:- "I also hold that Shri Jagan Nath who was knowingly involved in handling, possessing or otherwise dealing with gold at an unauthorised refinery has contravened the provisions of the Gold (Control) Act, 1968. I, therefore, impose a penalty of Rs. 15,000/- (Rupees Fifteen thousand only) upon him under Section 74 of the Gold (Control) Act, 1968".
22. Section 74 of the Gold (Control) Act, 1968 under which the applicant firm and its partner Shri Jagan Nath were found guilty and punished runs as follows:- "74. Liability to penalty:- Any person who, in relation to any gold does or omits to do any act which act or omission would render such gold liable to confiscation under this Act, or abets the doing or omission of such an act, or is incharge of the conveyance or animal which is liable to confiscation under this Act, shall be liable to a penalty not exceeding five times the value of the gold or one thousand rupees, whichever is more, whether or not such gold has been confiscated or is available for confiscation".
23. From a plain reading of the aforesaid Section 74, it is clear that the penalty can be imposed on any person, (which includes a firm under Section 3 (42) of the General Clauses Act as held by the Hon'ble Supreme Court in the aforesaid cases), who, in relation to any gold does or omits to do any act which act or omission would render such gold liable to confiscation. It can also be imposed on any one who abets the doing or omission of such an act. Under these circumstances we are unable to understand as to why the firm and its partner cannot be adjudged guilty of contravening the provisions of Gold (Control) Act and be subjected to penalties under Section 74 of the Act. In the instant case as stated above, both the firm and its partner were issued separate show cause notices for their individual act or omission and ultimately found guilty. Hence under these circumstances the question of twice punishing the partner of the applicant firm for the same sets of acts does not arise. Thus neither on the facts of the case nor in the eye of law it can be said in the instant case that Shri Jagan Nath was twice punished for the same sets of acts of the applicant firm.