1. By this petition under Section 256(2) of the Income Tax Act, 1961 (for short " the"), the Revenue seeks a direction to the Income Tax Appellate Tribunal to state the case and refer the following question, said to be one of law, for the opinion of this court :

"Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in law in holding that the rent received from factory building is to be assessed as income from business and not under the head Income from house property "

The petition pertains to the assessment year 1989-90 for which the relevant accounting period ended on March 31, 1989. In its annual accounts for the relevant assessment year, forming part of the return of income, the assessee, a private limited company, claimed depreciation on the factory building owned by it. However, during the course of assessment proceedings, the Assessing Officer was of the view that the income derived by the assessee by letting out the factory building was to be assessed as income from house property and not as business income as declared by the asses see. He accordingly allowed a statutory deduction under Section 24 of theto the assessed and brought the said income to tax under the head "Income from house property".

2. Aggrieved, the assessed preferred appeal to the Commissioner of Income Tax (Appeals) who, after calling for a remand report from the Assessing Officer came to the conclusion that the factory building continued to be a commercial asset of the assessed inasmuch as the assessed was carrying on its business in the said premises and only a part of it had been let out. He accordingly treated the rental income as business income and allowed depreciation claimed by the assessee.

3. Being aggrieved, the Revenue took the matter in further appeal to the Tribunal. The Tribunal found that in all the earlier years starting from the assessment year 1984-85, the income derived by the assessed from the factory building had been treated as income from business by the Assessing Officers themselves. Observing that no distinguishing feature had been pointed out in the present year, the Tribunal affirmed the view taken by the Commissioner of Income Tax (Appeals). The Revenues application under Section 256(1) of thehaving been dismissed, the present petition has been filed.

4. Having heard Mrs. Prem Lata Bansal, learned counsel for the Revenue, and Mr. Salil Aggarwal, learned counsel for the respondent we are of the view that no fault can be found with the order of the Tribunal declining to make a reference on the proposed question. It is true that each assessment year being independent of the other, the doctrine of res judicata does not strictly apply to Income Tax proceedings, but where an issue has been considered and decided consistently in a number of earlier assessment years in a particular manner, for the sake of consistency, the same view should continue to prevail in subsequent years unless there is some material change in the facts. In the present case, learned counsel for the Revenue has not been able to point out even a single distinguishing feature in respect of the assessment year in question which could have prompted the Assessing Officer to take a view different from the earlier assessment years, in which the same income was brought to tax as income from business.

5. The petition is accordingly dismissed with no order as to costs.