DIPAK KUMAR SEN, J.

( 1 ) UNDER Section 256 (1) of the Income-tax Act, 1961 (" the Act "), the following questions have been referred as questions of law arising out of the order of the Tribunal for the opinion of this court at the instance of the assessee : "1. Whether, on the facts and in the circumstances of the case, in computing the capital employed for working out the deduction under Section 80j of the Income-tax Act, 1961, the depreciation in respect of the assets already allowed has to be considered ?

( 2 ) WHETHER, on the facts and in the circumstances of the case, in computing the capital employed for the purpose of deduction under Section 80j of the Income-tax Act, 1961, the written down value of the assets has to be considered as per the income-tax records and not as per the assessee's books ? "2. The following questions have also been referred for the opinion of this court as questions of law arising out of the order of the Tribunal at the instance of the Revenue : " 3. Whether, on the facts and in the circumstances of the case, an appeal preferred by an assessee who had not filed any objection to the draft assessment order as provided under Sub-section (2) of Section

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