COMMISSIONER OF INCOME-TAX, CENTRAL ZONE `C', KARACHI VS MESSRS MUHAMMAD AMIN MUHAMMAD BASHIR LIMITED, KARACHI
1991 P T D 493
[Karachi High Court]
Before Saleem Akhtar and Muhammad Hussain Adil Khatri, JJ
COMMISSIONER OF INCOME-TAX, CENTRAL ZONE `C', KARACHI
versus
Messrs MUHAMMAD AMIN MUHAMMAD BASHIR LIMITED, KARACHI
Income Tax Case No. 14 of 1982; decided on 29/11/1990.
Income Tax Ordinance (XXXI of 1979)---
---S. 136---Reference---Limitation---Application by department had been filed after three years and two months---Department made a misstatement as regards the date of service of order---High Court dismissed the application of reference with cost with a warning to the Department and the Officer concerned that in future if such statement was made serious action would be taken.
1988 PTD 227 and 1987 PTD 1240 (sic) ref.
Nasrullah Awan for Applicant.
Sirajul Haq for Respondent.
Date of hearing: 29th November, 1990.
JUDGMENT
SALEEM AKHTAR, J.---The applicant had filed application under section 66(1) of the Income-tax Act, 1922 for referring the following questions to the High Court in respect of assessment year 1973-74:--
"(1) Whether on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in deleting the additions made under section 10(2)(iii) of the Income-tax Act?
(2) Whether on the facts and in the circumstances of the case, there was any material before the Income-tax Appellate Tribunal to justify the deletion of commission and rebate?"
The Tribunal by its order dated 9-12-1978 referred the second question but refused -to refer the first question. On 17-2-1982 the applicant filed application under section 136(2) of the Income Tax Ordinance, 1979 with the following averments:--
"4. That being aggrieved by order dated 8-1-1979 passed by the Hon'ble Tribunal the applicant moved a reference applicant No. R.A. No.249/KB of 1977-78 before the Hon'ble Tribunal under section 66(1) of the Repealed Income Tax, 1922, to draw up a statement of the case and refer the question of law to this Hon'ble High Court. The statement of case and question arising from the order of the Hon'ble Tribunal as drawn up by the applicant is (date of previous statement of the case). True copy of the Tribunal's order dated (above) is annexed hereto and marked "C".
5. That, by an order dated above passed under section 66(1) of the Act, the Hon'ble Tribunal rejected the Reference Application, and refused to state the case on the ground that, no question of law arises therefrom.
True copy of the Tribunal's order dated (above) is annexed hereto and marked "E".
6. That the notice of the Hon'ble Tribunal's order dated above, passed in reference application under section 66(1) of the Repealed Act, was served on the applicant on 21-10-1981. The present application is made within the statutory period of 120 days from the date-of service of the said order."
Annexure "E" mentioned in paragraph 5 was not filed. The order dated 19-12-1978 was filed and was marked as Annexure "CC". When the matter came up for hearing on 27-11-1979, Mr. Sirajul Haq raised a preliminary, point that the application was barred by time. At the request of Mr. Awan we adjourned the hearing as he wanted to obtain instructions from the applicant. Mr. Awan has stated that the Department wants to press the application and does not wish to withdraw it. Referring to para. 6 of the application, we inquired from Mr. Nasrullah Awan whether the date of service (21-10-1981) refers to order dated 9-12-1978. Mr. Nasrullah Awan stated that reference is to order dated 3tJ-1-1981, Annexure "E" which was not filed With the application: He has placed a copy of the order on record today. A perusal of the application particularly paragraphs 4, ' 5 and 6 and the statement of facts and proposed question mentioned therein clearly indicate that firstly the averments of paragraph 5 were irrelevant and secondly a misstatement was made as regards the date of service of order dated 9-12-1979. It seems to have been intentionally made to bring the case within time. The order Annexure `E' does not contain questions which are required to be referred by this application therefore. date of service of this order should not have been mentioned for computing the period of limitation. We take a serious note of such erroneous statement by the Department as it is likely to create more confusion and waste lime of the Court.
Mr. Sirajul Haq bas relied on 1988 P T D 227 and 1987 P T D 1240 (sic.). The observations in these judgments fully apply to the present case which is barred by time. Tire application has been filed after three years and 2 months. The application is dismissed with cost with a warning to the Department and the Officer concerned that in suture if such statement is made serious action shall be taken.
M.B.A./C-184/K Application dismissed.