The assessee is eligible for the deduction under section 80 HH only in respect of profit and gains derived from industrial undertaking and to the extent mentioned in the said section.

In this reference under section 256 (1) of the Income Tax Act. 1961 the following question has been referred to this Court for opinion in respect of assessment for 4 years :

"Whether the Tribunal did not err in law as well as in facts in upholding the order of the Commissioner of Income Tax (Appeals) who directed the Assessing Officer to allow deduction under section 80 HH in respect of whole business even though there was no profit from the concerned factory."

2. Against the order passed by the Assessing Officer in respect of assessment years of 1979-80, 1980-81 and 1982-83, the assessee preferred the appeal before the Commissioner of Income Tax (Appeals) and the CIT (Appeals) by judgment and order dated 16th July, 1986 allowed the appeals and while cancelling the aforesaid assessment years 1979-80, 1980-81 and 1982-83 the CIT (Appeals) observed thus :

"I am inclined to agree with the contention of the appellant, section 154 of the IT Act applies to a case where there cannot be two opinions. In the facts and circumstances of the case, the IAC, AR, was not justified in taking recourse to action under section 154 on a point where two possibles opinions could be framed. Moreover, in view of the Orissa High Court judgment in the case of CIT vs. NC Budharaja (121 ITR 212) the appellant is eligible for deduction under section 80 HH in respect of the entire business income."

3. On appeal also the Tribunal rejected the prayer of the Revenue Department thereby allowing the assessee to get the benefit of the provisions under section 80 HH and on the prayer of the Revenue Department the above question has been referred to.

4. Mr. Goertka, learned counsel appearing on behalf of the assessee submits that the present question does not arise out of the order of the Tribunal inasmuch as it relates to all these three (3) cases, namely, 1TA No.56, 57 and 58 of 1990 in connection with the assessment years 1979-80, 1980-81 and 1982-83 and it does not ralate to the giving of benefit of section 80 HH. In the assessment year 1983-84, such question was involved. This matter is in respect of the assessment years, 1979-80, 1980-81 and 1982-83 where there is no question of giving benefit under section 80 HH. The subject matter of the appeal was only regarding the order passed under section 154 of the Income Tax Act. Therefore, there is no referable question. However, Mr. Joshi learned counsel appearing for and on behalf of the Revenue Department disputes the contention of Mr. Goenka, learned counsel for the assessee. According to him this point had been agitated before the CIT (Appeals) as well as before the Tribunal and the CIT (Appeals) had passed the order giving direction to give the benefit of section 80 HH in respect of the entire business income of the year and this had also been dealt with by the Tribunal. It is true that no question can be referred to this Court for its opinion under section 256 (1) of the Act, unless such question arise out of the order passed by the Tribunal. In this connection, reference can be made to a decision of the Apex Court in CIT vs. Scindia Steam Navigation Co Ltd, (1961) 42 ITR 589. After discussion and on consideration of various aspects on the point, the Apex Court came to the conclusion and summed up as follows :

"1. When a question is raised before the Tribunal and is dealt with by it, it is clearly one arising out of its order.

2. When a question of law is raised before the Tribunal but the Tribunal fails to deal with it, it must be deemed to have been dealt with by it, and is, therefore, one arising out of its order.

3. When a question is raised before the Tribunal but the Tribunal deals with it, that will also be a question arising out of its order.

4. When a question of law is neither before the Tribunal nor considered by it, it will not be question arising out of its order nothwithstanding that it may arise on the finding given by it."

5. Assuming that the contention of Mr. Goenka, learned counsel