ASHOK BHAN, J.

1. The Commissioner of Income-tax, Haryana, Rohtak, has filed this petition under Section 256 (2) of the Income-tax Act, 1961, for issuance of a mandamus directing the Income-tax Appellate Tribunal, Delhi Bench, New Delhi, to refer the following question of law to this court for its opinion, along with the statement of the case :

"whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was right in law in holding that mention of specific words long-term capital gains in Section 115e would not necessarily imply that short-term capital gains have been excluded from the applicability of such provisions "

2. The assessee derived income from interest on debentures and capital gains, both long-term and short-term, on sale of equity shares of Oswal Agro Mills Limited. The computation as well as levy of tax at the rate of 20 per cent. under Section 115e in respect of long-term capital gains was accepted by the Revenue. In respect of short-term capital gains, there is a dispute regarding computation of tax. The assessee claimed that tax at the rate of 20 per cent. was applicable both for long-term and short-term capital gains, whereas the case of the Revenue was that on short-term capital gains, the normal rate of tax was applicable.

3. The Tribunal, on a consideration of the relevant provisions of law, held that short-term capital gains fall within the definition of "investment income" under Section 115e read with Section 115c.

5. A question of law does arise from the order of the Tribunal. There is no direct judgment either of the Supreme Court of India or of this court on the point involved in this case. The question of law as claimed by the Revenue is not happily worded. After a perusal of the order of the Tribunal, we are of the view that the question of law has to be reframed and, accordingly, we direct the Tribunal to refer the following question of law along with the statement of the case for the opinion of this court instead of the one claimed by the Revenue ;

"whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was right in law in holding that the short-term capital gains are included in the long-term capital gains in Sections 115e and 115c and that the short-term capital gains is an investment income within the meaning of Section 115c (c) "