JUDGMENT
V.A. Mohta, J.
1. This is an application by the Commissioner of
Income-tax, Nagpur, under section 256(2) of the Income-tax Act, 1961, for a direction to the Tribunal to state the case and to refer the following two questions said to be of law for the opinion of this court :
“(1) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was correct in confirming the orders of the Appellate Assistant Commissioner holding that relief under section 23(1) is admissible in respect of five shops utilised for commercial purposes ?
(2) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was correct in holding that the assessee was entitled to relief in respect of five shops envisaged by the proviso to section 23 of the Income-tax Act in view of the admitted fact that premises were not residential units ?”
2. The property known as Wani Market, is registered as a commercial complex in the municipal council and is used as shops.
3. The benefit under the second proviso to sub-section (1) of section 23 of the Income-tax Act was claimed by the assessee on the basis that it was a residential unit. The Income-tax Officer did not grant that benefit. The Appellate Assistant Commissioner allowed the appeal of the assessee. The Tribunal confirmed the order passed by the Appellate Assistant Commissioner on the basis of a circular of the Central Board of Direct Taxes dated March 19, 1971, and the case of Tata Engineering and Locomotive Co. Ltd. v. Gram Panchayat, .
4. In view of the language employed in section 23 and the relevant proviso, the above questions of law do arise out of the order of the Tribunal and, hence, this application is allowed and rule made absolute. No order as to costs.