N.D.OJHA, J. - (1.)AGAINST an order of assessment passed by the ITO with regard to the asst. year 1976 -77, an appeal was preferred by the assessee before the CIT(A). An application was also presented on behalf of the assessee for exemption from the provisions of S. 249(4) of the Income -tax Act, 1961 (hereinafter referred to as "the Act"). This application was made under the proviso to S. 249(4) of the Act which contemplates that on an application made by the appellant, the appellate authority may, for any good and sufficient reason to be recorded in writing, exempt it from the operation of the provisions of Sub -S. (4).
(2.)THE exemption was sought by the assessee with regard to the payment of the tax due on the income returned by him which was the condition precedent for admission of an appeal in view of cl. (a) of Sub -S. (4) of S. 249 of the Act. The application for exemption, however, was not granted by the CIT and an order was passed on 13th July, 1979, saying that the appeal was not admitted and was dismissed in limine. Against this order, an appeal was preferred by the assessee before the Tribunal under S. 253 of the Act. This appeal was allowed by the Tribunal and the matter was remanded to the CIT to dispose of the appeal filed by the assessee afresh in the manner indicated by the Tribunal in its order. Thereafter, an application was made by the CIT before the Tribunal under S. 256(1) of the Act to refer the following two questions to this Court for its opinion:
"1. Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in entertaining the appeal filed against the order of the CIT(A) refusing to exempt the assessee from the operation of the provisions of Sub -S. (4) of S. 249 of the IT Act ?

2. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in exempting the assessee from the operation of the provisions of S. 249(4) of the IT Act -

(3.)ON the said application being dismissed, the present application has been made by the CIT with a prayer that the Tribunal may be directed to draw up a statement of the case and refer to this Court for its opinion the aforesaid two questions.
Having heard learned counsel for the parties, we are of the opinion that there is no substance in this application.