SUHAS CHANDRA SEN, J. - (1.) THE assessee has made this application under s. 256(2) of the IT Act for referring two questions of law to this Court. The rule was issued on 13th Sept., 1988 in respect of two following questions, stated to have arisen out of the order passed by the Tribunal : "1. Whether, on the facts and circumstances of the case, the Tribunal was justified in law in remanding the matter to the ITO for fresh consideration to assess the rental income received by the assessee either under the head 'Income from House Property' or 'business' ? 2. Whether the Tribunal was misdirected in law in not holding that the income was assessable under the head business on the facts as found by the CIT(A) in his order dt. 25th March, 1988 ?"
(2.) IT appears that the Tribunal has merely remanded the case back to ITO. The reasons for remanding the case by the Tribunal has been stated in its order dt. 20th Dec.,1985. In paragraph 8, the Tribunal in its order held that : "It is necessary to examine all the relevant factors including the objections and memorandum of association of the assessee-company the period for which the tenancies have been created, whether the tenancies were in existence earlier before the assessment year under consideration, whether the tenancy continued thereafter also etc. So we are of the opinion that the matter should be remitted back to the ITO for fresh consideration. As such we set aside the order of the lower authorities on this point and remit the matter back to the ITO for fresh decision. during such hearing the assessee shall be permitted to adduce further evidence on the point." The Tribunal in its earlier part of the order has stated that the assessee has a factory at premised No. 47, Hide Road, Calcutta ; during the previous year relevant to the assessment year under consideration, i.e. 1979-80, the assessee--company realised rent of Rs. 6,86,247,60 from several tenants to whom godown was let out. From the materials on record it is not clear whether one ground was let out to all these tenants or separate ground were let out to all these tenants. The assessee-company treated this amount of Rs. 6,86,248 as business income but the ITO treated the same as income from house property.
(3.) BEFORE the CIT(A), the argument advanced on behalf of the assessee was that the receipts were earned from hiring out surplus vacant place to transport concerns and unutilised godowns at assessee's factory premises at 47, Hide Road, Calcutta to a number of commercial concerns for their business use It was pointed out that the entire premises was a commercial asset of the assessee for its business purposes and originally it was used entirely by the assessee for its own business. Finding some surplus space in the areas and in the godowns, the assessee was hiring out space or godown to other commercial establishments, depending upon their needs and there was no question of permanent tenancy. this contention of the assessee was accepted by the CIT. but the CIT did not investigate the facts, stated on behalf of the assessee, while making the order. The Tribunal while making the order of remand had made the observations that : "We have carefully examined the decisions relied upon by the authorised representatives of the parties and considered the materials on record, facts and circumstances of the case. In our opinion, the decision in case of Sri Luxmi Silk Mills Ltd. (supra), Karanpura Dev. Co. Ltd., S. G. Mercantile Corporation (P) ltd., Premchand Jute Mills Ltd. and Katihar Jute Mills (P) Ltd. are not strictly applicable to the instant case as the facts are different. In most of the aforesaid decisions the entire mill was let out after suspension of business. but admittedly in this case the business of the assessee company is carried on as usual in the factory premises and only one or more godown which are not required by the assessee company have been let out. On the other hand the decision in the case of Tinsukia Dev. Corporation Ltd. is an authority for the proposition that whatever the nature of the activity or the nature of the income of an assessee has to be classified and computed under the specific heads. In our opinion, this is a question of fact which requires consideration." ;