K. Shivashanker Bhat, J.—The question referred for our consideration under section 256(1) of the Income Tax Act, 1961, respect of the assessment year 1979-80 read thus :

"1. Whether, on the fact and in the circumstances of the case, the Appellate tribunal is right in law in upholding the order of the Commissioner of Income Tax (Appeals) who directed the Inspecting Assistant Commissioner to allow depreciation on value of roads, wall and fences ?

2. Whether, on the fact and in the circumstances of the case, the Appellate Tribunal is right in law in upholding the order of the Commissioner of Income Tax (Appeals) who directed the Inspecting Assistant Commissioner to include the value of work-in-progress, machinery and equipment in transit and under erection in the computation of capital for the purpose of calculating relief under section 80J ?

3. Whether, on the fact in circumstances of the case, the Appellate Tribunal is right in law in upholding the order of the Commissioner of Income Tax (Appeals) who directed the Inspecting Assistant Commissioner to allow deduction under section 35 of the capital as represented by work in-progress and machinery in transit and under erection