Ajit Sengupta, J. - (1.) In this reference under Section 256(2) of the Income-tax Act, 1961, for the assessment year 1980-81, the following two questions of law have been referred to this court : "1. Whether, on the facts and in the circumstances of the case, the Tribunal failed to take proper note of Clause VI of the deed of assignment dated September 3, 1966, and whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that, M/s. Park Hotel (P) Ltd. was not the owner of the superstructure built on the land at 15 Park Street, Calcutta-16, during the tenure of lease and that income arising therefrom should be assessed under the head 'Business' and not under the head ' House property' ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the income from electricity charges should be assessed under the head ' Business ' and not under the head 'Other sources' ?"
(2.) So far as the first question is concerned, the parties are agreed that this question is concluded by the decision of this court in the case of Park Hotel (P) Ltd. v. CIT [1987] 167 ITR 60. Following the said decision, we answer the first question in this reference in the affirmative and in favour of the assessee.
(3.) The second question pertains to the assessment of income from electricity charges under the head "Other sources". The ground of appeal raised before the Tribunal was as under : "That the Commissioner of Income-tax (Appeals) erred in law as well as on facts in entertaining electricity charges as income from 'other sources' and changing it to as income from 'business' since that ground was not taken before the Income-tax Officer or the Inspecting Assistant Commissioner.";