JUDGMENT
1. By this petition under Section 256(2) of the Income-tax Act, 1961 (for short, "the Act"), the Revenue seeks a direction to the Income-tax Appellate Tribunal to state the case and refer the following questions said to be arising out of I. T. A. No. 3209/Delhi of 1992, for the opinion of this court :
"1. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in deleting the under valuation and in deferring the issue of valuation of closing stock of the assessee till the decision of a Special Bench in this regard ?
2. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in holding that H.R.A. should be excluded for the purpose of computing disallowance under Section 40A(5) and Section 40(c) ?"
2. The petition pertains to the assessment year 1988-89 for which the relevant accounting period ended on April 30, 1987. At the outset, it is pointed out by learned counsel for the assessee that the question sought to be referred in the Revenue's application under Section 256(1) of the Act was as under : " Whether on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in deferring the issue of valuation of closing stock of the assessee till the decision of the Special ' Bench in this behalf ?"
3. It is, therefore, submitted by Mr. S. K. Aggarwal, learned counsel for the assessee, that question No. 1 now proposed in this petition being different from the one raised in the application before the Tribunal, reference on the proposed question cannot be called. We are inclined to agree with learned counsel. It is well settled that a question which is not raised before the Tribunal in the first instance under Section 256(1) of the Act cannot be permitted to be raised in a petition under Section 256(2), We, therefore, decline to take into consideration the question as proposed. In this view of the matter, we are of the view that reference on the question raised before the Tribunal is also not a question of law as we do not find any bar in the Tribunal's deferring an issue to await the decision of its Special Bench.
4. As regards question No. 2, by a separate order passed today we have declined to call for reference on a similar question in I. T. C. No. 46 of 1995, pertaining to the assessment year 1986-87. Following the said order, we reject this petition as well. No costs.