JUDGMENT
N.D. Ojha, J.
1. Aggrieved by the order of the Income-tax Appellate Tribunal, B-Bench, Allahabad, allowing an appeal filed by the assessee, opposite party, in regard to the assessment year 1975-76, the Commissioner of Income-tax, Allahabad, made an application under Section 256(1) of the Income-tax Act, 1961 (hereinafter referred to as “the Act”), with a prayer that the following three questions may be referred to this court for its opinion :
“1. Whether, on the facts and in the circumstances of the case, the Tribunal was legally correct in holding that commission paid in India to HHEC and Banaras House Ltd. for securing orders is entitled for weighted deduction under Section 35B ?
2. Whether, on the facts and in the circumstances of the case, the Tribunal was legally correct in holding that a ‘non-speaking’ order is not ‘erroneous’?
3. Whether, on the facts and in the circumstances of the case, the Tribunal was legally correct in holding that the order of the Commissioner of Income-tax under Section 263 was not sustainable in law ?”
2. The Tribunal dismissed this application whereupon the present application under Section 256(2) of the Act, has been filed by the Commissioner of Income-tax with a prayer that the Tribunal may be directed to refer the aforesaid three questions to this court for its opinion.
3. Having heard, counsel for the parties, we are of the opinion that question No. 1, referred to above, is a question of law arising out of the appellate order of
the Tribunal and a case requiring the Tribunal to refer the said question to this court has been made out. As regards question No 2, we agree with the view taken by the Tribunal that the said question is not a question of law arising out of the order of the Tribunal. In our opinion, the Tribunal was also right in dismissing the application in regard to question No. 3 on the ground that it was a general question.
4. In the result, this application succeeds and is allowed in part to this extent that the Tribunal is directed to draw up a statement of the case and refer the aforesaid question No. 1 to this court for its opinion. The application in regard to questions Nos. 2 and 3, is, however, dismissed. In view of their divided success, the parties shall bear their own costs.