JUDGMENT D.P. Wadhwa, C.J. – At the instance of the revenue, on an application filled under section 256 (2) of the Income-tax Act, 1961 (for short 'the Act'), the Income-tax Appellate Tribunal, Patna Bench, Patna, referred the following two questions to this Court for decision relating to the assessment year 1977-78 : "1. Whether the Tribunal's finding that the payment of Rs. 9,00,000 on account of licence fee to the foreign collaborators was not incorrect in view of its order in I.T.A. No. 932 (Pat) of 1977-78 and nos. 1982 & 1983 (Pat) of 1978-79? 2. Whether the Tribunal was correct in upholding the finding of the CIT (A) holding the royalty payment of Rs.6,30,215 as the revenue expenditure?" 2. For facts of this case we may refer to our judgment in Tax Case 232 of 1981 and analogous cases. 3. When statement of case was drawn by the Tribunal it observed as under with reference to these questions : "(1) The facts in connection with these questions which are now been referred are that in the earlier years, ITAT had held that the payment of Rs. 9,00,000/- on account of licence fee was a capital expenditure and not a revenue expenditure. The C.I.T. (A) it appears incorrectly mentioned in its order that ITAT had allowed this amount as revenue expenditure in the earlier years. On this basis, the CIT(A) allowed this amount as a revenue expenditure in this year as well. ITAT also upheld the order of the CIT(A) on the same basis that it was allowed in the earlier years while actually it was not allowed. The reason given by the CIT(A) and ITAT for alowing payment of licence fee of Rs. 9,00,000/- thus does not appear to be correct." "(2) As far as the second question is concerned, regarding royalty of Rs.6,30,215/-, the CIT(A) had allowed this amount after mentioning that it was allowed by the ITAT in the earlier years. This version of the CIT(A), it appears, is not correct as there was not such issue before the ITAT in the earlier years. The ITAT also upheld the finding of the CIT (A) on the same basis that it was allowed by the ITAT in the earlier years though actually there was no such order in the earlier years, as this issue was not there in those years." 4. The ITAT also upheld the finding of the CIT (A) on the same basis that it was allowed by the ITAT in the earlier years though actually there was no such order in the earlier years, as this issue was not there in those years." 4. That being the statement made by the Tribunal, we thought, since there was a mistake apparent from the record the Appellate Tribunal could have been moved under section 254(2) of the Act to rectify the mistake. Instead of adopting that course, the revenue sought to have these questions referred to this Court for its opinion. The limitation for moving an application under sub-section (2) of section 254 of the Act is four years from the date of the order. 5. Mr. Jain, learned counsel for the assessee was at pains to explain that these two question have to be answered in favour of the asessee. By reference to the order of the Assessing Officer, C.I.T. (Appeal) as well as the Tribunal he tried to show that the Appellate Tribunal in earlier years did hold that the payment of Rs. 9,00,000/- on account of licence fee was revenue expenditure. He said that this was the ratio of the judgment passed by the Appellate Tribunal. As regards the second question, he said that there was some inadvertent confusion in the order of the Appellate Tribunal due to compounding of two claims, i.e., the licence fee and royalty, and that under the agreement with foreign company this royalty payment was revenue expenditure. 6. We are unable to agree with the submission made by Mr. Jain. When the Appellate Tribunal itself was of the view that in the earlier years these questions had not arisen and CIT(A) was not correct in returning findings on these questions on the basis of the provisions of sub-section (2) of section 254 of the Act as the revenue failed to invoke that remedy for rectifying the mistake which was apparent on the face of the record. The second alternative is to remand the matter back to the Tribunal to decide these questions afresh as per law. In the interest of justice, we are of the opinion that we shall adopt the second course. The second alternative is to remand the matter back to the Tribunal to decide these questions afresh as per law. In the interest of justice, we are of the opinion that we shall adopt the second course. Accordingly, we return back to the Appellate Tribunal, Patna Bench, Patna, for a decision on the two questions after findings arrived at by it on the basis of the record. S. J. Mukhopadhaya, J. - I agree.