SENGUPTA, J. - (1.) THIS is a consolidt. reference under S. 256(1) of the IT Act 1961 ('the Act') for the asst. yr. 1984- 85. The assessee has challenged the appellate order of the Tribunal whereby the Tribunal held that the grant of loan to the assessee by Paharpur Cooling Towers (P) Ltd. at a concessional rate amounted to assessable perquisite. The assessee had filed two miscellaneous applications. In the first miscellaneous application the assessee had drawn the attention of the Tribunal to the decision of this Court in the case of CIT vs. P.R.S Oberoi (199) 84 CTR (Cal) 191 : (1990) 183 ITR 103. The Tribunal distinguished the said judgment of this Court in the case of P.R.S. Oberoi (supra) and rejected the said first miscellaneous application, but the Tribunal allowed the second miscellaneous application filed by the assessee and held that the facts and circumstances were identical with those of P.R.S. Oberoi's case (supra).
(2.) THE Revenue's reference is on the question whether the Tribunal after having rejected the first miscellaneous application of the assessee where by the assessee had drawn the attention of the Tribunal to the decision of this Court in the case of P.R.S. Oberoi (supra) is justified in holding in the order passed in the second miscellaneous application that the issue involved before the Tribunal and decided was identical. The Revenue has contended that such course ought not to have been taken by the Tribunal as there was no mistake apparent from the record and the Tribunal in fact reviewed the original appellate order by the order passed in the second miscellaneous application.
(3.) ON these facts, the following questions have been referred by the Tribunal at the instance of the assessee: "1. Whether, the Tribunal was justified in failing to consider and/or to hold that in view of the amendments made by the Taxation Laws (Amendment) Act, 1984 as well as the Finance Act, 1985 in S. 17(2) of the IT Act, 1961 the grant of loans by Paharpur Cooling Towers (P) Ltd. to the assessee on the facts and circumstances of the case did not amount to any assessable perquisite? 2. Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in upholding state the initiation of proceedings as well as the order passed by the CIT under S. 263 of the IT Act, 1961 in respect of the asst. yr. 1984-85?. ;