Judgment:
1. This application under Section 256 of the IT Act, 1961 (for short, 'the Act, 1961'), is arising out of the order dt. 31st July, 1989 of the learned Tribunal, 'Jaipur' Bench, Jaipur (for short, 'the Tribunal'), in IT Appeal No. 902/Jp/88 against which the petitioner's reference application No. 184/Jp/89 under s, 256(1) of the Act, 1961, has been rejected by the learned Tribunal on 23rd Feb., 1990.
2. The petitioner is praying for direction to the learned Tribunal to draw the statement of the case and refer the following question for the opinion of this Court:
'Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the income of the assessee should be assessed under the head 'Income from business' instead of 'Income from property' as assessed by the ITO?'
3. Briefly stated the facts leading to filing of this application are that the assessment of the assessee for the year 1983-84 was finalised by the IAC, Asst.-III, Jaipur, as per his order dt. 27th Feb., 1986. In the course of assessment of the income-tax, it was found that the assessee is constructing a hotel at Jodhpur and the hotel still is under construction and no business was done. The assessee, however, earned rent from letting out eight flats belonging to it. The rent of the flats received by the assessee was claimed as business income but the AO has taken it to be the income from house property and allowed the expenses accordingly and depreciation and non-allowable expenses were disallowed. Against this order of the AO, the assessee preferred an appeal to the CIT(A) Rajasthan-II, Jaipur, who vide his order dt. 16th Sept., 1986 rejected the same. The assessee preferred second appeal to the learned Tribunal. The learned Tribunal allowed this claim of the assessee. The Revenue submitted an application under Section 256(1) of the Act, 1961, for reference of the question aforesaid for the opinion of this Court, That application was rejected under the order dt. 23rd Feb., 1990 and thus this application.
4. Sri Anuroop Singhi, the learned counsel appearing for the Revenue, relying upon the decision of the various High Courts, submitted that the question as to whether the rental income is an income from the business is a question of law. The learned Tribunal, in his submission, erred in not to refer this question of law arose in the matter for the opinion of this Court.
5. It has next been contended that the learned Tribunal decided the matter relying on its earlier order in respect of the same property of the assessee for the asst. yrs. 1981-82 and 1982-83 in ITA Nos. 159/Jp/1986 and 160/Jp/1986 where the claim of the assessee has been allowed holding that the claimed income of the assessee is income from business and accordingly it was assessed.
6. The learned Tribunal has held that no distinguishing facts have been brought to its notice by the representative of the Department. In his submission the question of law arose in the earlier assessment year assessing the income of the assessee, i.e., 1981-82 and 1982-83, the reference has already been made to this Court, which is pending.
7. Nobody is present on behalf of the Revenue (assessee) to controvert this factual statement made by the learned counsel for the Revenue. We also find from the application that in para (c) thereof this specific averment has been made. As identical question has already been referred by the learned Tribunal in the earlier assessment year of the assessee, we are of the considered opinion that this application deserves acceptance.
In the result, this application succeeds and the same is allowed. The learned Tribunal is directed to draw the statement of the case and refer the question for the opinion of this Court.
No order as to costs.