Jagannatha Shetty, J.—This is a referred under s. 256(1) of the I.T. Act, 1961. The question referred by the Income Tax Appellate Tribunal, Bangalore Bench, for the opinion of this court, is as follows :

"Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the applicant could not be treated as an industrial company within the meaning of section 2(8)(c) of the Finance Act, 1975 ?"

2. The assessee is a private limited company. For the assessment year 1975-76, it had income from departmental stores, bakery, restaurant and bar. Its total income for the year was Rs. 3,88,333 out of which a sum of Rs. 1,69,428 was attributable to the bakery and an income of Rs. 72,807 was attributable to the restaurant. If the latter two sums are taken together, it would exceed more than 51 per cent. of the total income of the company. The assessee made that claim so as to be considered as an industrial company for the purpose of getting the benefit of concessional rate of tax.

3. Section 2(8) of the Finance Act, 1975, provides for rates of levy of tax in respect of the different types of companies mentioned therein.

4. Section 2(8)(c) of the Finance