JUDGMENT : S.C. Mohapatra, J. - This is a reference u/s 256(2) of the Income Tax Act, 1961 (for short "the Act"). 2. The assessee is a private limited company in respect of the assessment for the year 1971-72. It claimed deduction of Rs. 8,700 from its income which was paid as interest to Kalinga Foundation Trust (hereinafter referred to as "the trust"). There is no dispute that in case the trust is a juristic person, the claim has to be allowed. The case of the Department was that there is no such juristic person and Sri Biju Patnaik, an assessee, was camouflaging his own income by using the name of the trust. The question whether the trust is a juristic person was the subject-matter of a proceeding in the assessment of Sri Biju Patnaik in respect of the assessment years 1962-63 to 1964-65. In the first appeal, the orders ot assessment were set aside with a direction to make the assessments afresh. Both the assessee and the Department approached the Appellate Tribunal in second appeal. The Appellate Tribunal considered the materials and held that the trust called Kalinga Foundation Trust was a separate and distinct entity where the assessee, Sri Biju Patnaik, was merely holding an executive post. The Department filed applications u/s 256(1) of the Act but the Appellate Tribunal refused to state a case on the finding that the decision in appeal was based on a pure question of fact. Aggrieved by the said refusal, the Department filed applications u/s 256(2) of the Act which were registered as S. J. C. Nos. 211 to 216 of 1971. The assessing officer without considering any fact and circumstance has held in this case that the claim is to be rejected as the matter is pending in the High Court for the reasons given in respect of the assessment for the year 1967-68 which was annexed as annexure-A to the assessment order. 3. While considering the question of calling for a statement of the case, this court was satisfied that the refusal to state a case was justified as the questions posed before the Tribunal and before this court were not of law. The decision of this court has since been reported as CIT v. Biju Patnaik, ILR [1974] Cut 374. 3. While considering the question of calling for a statement of the case, this court was satisfied that the refusal to state a case was justified as the questions posed before the Tribunal and before this court were not of law. The decision of this court has since been reported as CIT v. Biju Patnaik, ILR [1974] Cut 374. The Department went in appeal to the Supreme Court and the Supreme Court held that this court ought to have called for a statement of the case. Consequently, it directed the Tribunal to send a statement of the case to the High Court on the question formulated by this court. The decision of the Supreme Court has since been reported as Commissioner of Income Tax, Calcutta Vs. Biju Patnaik, . 4. The assessee in this case preferred an appeal before the Appellate Assistant Commissioner which was heard in September, 1974, by which time this court had rendered its decision in S.J.C. Nos. 211 to 216 of 1971. The Appellate Assistant Commissioner held as follows : "...Following the decision of the Orissa High Court, I hold that the Income Tax Officer is not justified in disallowing the interest as a protective measure. As such, the addition under the head is fully deleted. " 5. The Department carried an appeal before the Appellate Tribunal which was dismissed. The material portion of the second appellate order is extracted below: "...Following with respect the judgment the Hon'ble High Court of Orissa in S.J.C. Nos. 211 to 216 of 1971 dated 5-4-1974, we hold that the Kalinga Foundation Trust is a separate entity having sufficient funds to advance the loan. If follows, therefore, that the interest paid on loans borrowed by the assessee-company from Kalinga Foundation Trust for the purpose of business has to be allowed as a deduction in computing the business income. This interest was, therefore, rightly allowed by the Appellate Assistant Commissioner." 6. An application u/s 256(1) of the Act was filed by the Department for making a reference to this court by stating a case but the Tribunal refused to state a case on the ground that the question involved is only a question of fact. This interest was, therefore, rightly allowed by the Appellate Assistant Commissioner." 6. An application u/s 256(1) of the Act was filed by the Department for making a reference to this court by stating a case but the Tribunal refused to state a case on the ground that the question involved is only a question of fact. In the application u/s 256(2), this court was not satisfied with the correctness of the decision of the Appellate Tribunal in view of the pendency of the appeal before the Supreme Court against the decision rendered by this court in S.J.C. Nos. 211 to 216 of 1971 and directed the Tribunal to state a case on the following question : "Whether, on the facts and circumstances of the case, the Tribunal was justified in holding that the claim for payment of interest was admissible as a revenue expenditure ?" 7. On a perusal of the order of the Appellate Tribunal in second appeal, we are satisfied that the basis on which the decision has been rendered is no more available in view of the fact that the decision of this court has been reversed by the Supreme Court, Since the Appellate Tribunal has not considered the validity of the claim of the assessee on any material other than the decision of this court, the second appellate order has become erroneous in law. For the reasons indicated above, the Tribunal was not justified in holding that the claim for payment of interest was admissible as a revenue expenditure as it would depend upon the answer to be given by this court in S.J.C. Nos. 211 to 216 of 1971, when the same are heard and disposed of after the statement of the case is received as directed by the Supreme Court. 8. In the result, the referene is answered in the negative. No costs. Agrawal, C.J. 9. I agree.