ORDER A. R. Tiwari, J: The CIT, Bhopal, has filed this application under section 256(2) of the Income Tax Act, 1961 (for short 'the Act'), seeking direction to the Tribunal to state the case and refer the proposed question, as noted below, for our opinion, arising out of the order dt. 8th May, 1993, passed by the Tribunal in IT Appeal No. 601/Ind/1992 after rejection of the application presented under section 256(1) of the Act and registered as R.A. No. 97/Ind/1993 on 29th April, 1994, for assessment year 1989-90 : "Whether, on the facts and in the circumstances of the case, Tribunal was justified in law in reducing unabsorbed depreciation of Rs. 17,27,166 in place of unabsorbed business loss of Rs. 7,04,207 for determining the book profit of the year ?" 2. Briefly stated, the facts of the case are that after making adjustment under section 143(1)(a) of the Act, the book profit under section 113J of the Act was worked out at Rs. 10,22,959 and thus the total income @ 30 per cent was determined at Rs. 3,06,890 by the assessing officer. Net profit of the assessee for assessment year 1989-90, as per P & L a/c, was Rs. 17,27,166. In the immediate preceding year, 1988-89, the business loss of the assessee was Rs. 7,04,207 and unabsorbed depreciation was Rs. 17,74,568. The total thus came to Rs. 24,78,775. The assessing officer allowed deduction of unabsorbed business loss from the profits to arrive at book profits. By an application under section 154, the assessee requested assessing officer to allow deduction of unabsorbed depreciation from profits while calculating book profits under section115J as it was lesser than the total of business loss including unabsorbed depreciation. The assessing officer negatived the claim. The Commissioner (Appeals) confirmed the order of the assessing officer in appeal. The Tribunal, however, held that the expression "the amount of the loss" appearing in cl. (b) of the proviso to s. 205(1) of the Companies Act should be construed to mean the loss including depreciation and unabsorbed depreciation. It, therefore, found the total loss more than the unabsorbed depreciation and issued direction to calculate book profits accordingly. This resulted in nil income. Aggrieved, the department filed an application under section 256(1) of the Act, which was rejected. It, therefore, found the total loss more than the unabsorbed depreciation and issued direction to calculate book profits accordingly. This resulted in nil income. Aggrieved, the department filed an application under section 256(1) of the Act, which was rejected. The department then filed this application under section 256(2) of the Act on the ground stated in para 7 of the application. 3. We have heard Shri D. D. Vyas, learned counsel for the applicant/department and Shri G. M. Chaphekar, learned Senior counsel with Shri S. S. Samvatsar, for the non-applicant/assessee. 4. The counsel for the applicant submitted that the aforesaid question is one of law and merits to be referred. On the other hand, the counsel for the nonapplicant submitted that the aforesaid question is based on appreciation of facts and does not given rise to any referable question of law. 5. We find that the Tribunal allowed the appeal of the assessee as under : "In view of the above discussion, it is held that the computation of loss must necessarily include the amount of depreciation and unabsorbed depreciation. In the instant case, the loss being larger than the unabsorbed depreciation, the assessee is entitled to set off of the amount of unabsorbed depreciation. In the instant case, the unabsorbed depreciation is also not fully absorbed and, therefore, the book profit needs to be taken at nil." 6. The Tribunal considered the relevant provisions of law and applied its mind to the decisions in Garden Silk Weaving Factory v. CIT (1991) 94 CTR (SQ) 136: (1991) 189 ITR 512 (SC) , C1T v. Jaipuria China Clay Mines (P) Ltd. (1966) 59 ITR 555 (SQ) 5 and concluded in favour of the assessee. 7. The Tribunal declined to state the case and refer the question, as proposed, in the under noted terms : "The above finding, in our opinion, is a finding of fact based on appreciation of the facts available on record. This finding, in our opinion, does not give rise to a question of law. We, therefore, refuse to grant the reference." 8. We are satisfied that the conclusion of the Tribunal is based on appreciation of the facts which are not liable to be faulted with. 9. This finding, in our opinion, does not give rise to a question of law. We, therefore, refuse to grant the reference." 8. We are satisfied that the conclusion of the Tribunal is based on appreciation of the facts which are not liable to be faulted with. 9. In C1T v. Ashoka Marketing Ltd. 1976 CTR (SC) 238 (19 76) 103 1TR 54 3 (SC) and in CIT v. Kotrika Venkataswamy & Sons (1971) 79 1TR 499 (SQ) it is held that conclusion based on appreciation of facts does not give rise to any question of law. 10. The reference is not sought on the ground that there is no evidence or that the conclusion is perverse. The counsel for the applicant is unable to show as to how the aforesaid question is a question of law. The order of the Tribunal is based on proper appreciation of facts and correct application of law. There is thus no position of referable question of law. 11. In the result we reject this application but without any orders as to costs. 12. Counsel's fee for each side is, however, fixed at Rs. 750, if certified.