THE COMMISSIONER OF INCOME-TAX, CENTRAL ZONE "B" KARACHI VS MESSRS K.B. INDUSTRIES LTD., 1992 PTD-KARACHI-HIGH-COURT-SINDH 330 (1991)

(a) Income Tax Ordinance (XXXI of 1979)---

----Sched. I, Part III, Para. A, Explanation (a) [as substituted by Finance Ordinance (II of 1978)]---Un-retained income could not be calculated for the purposes of levy of surcharge.

Commissioner of Income-tax v. Pakistan Tobacco Co. Ltd: 1988 PTD 66 fol.

(b) Income Tax Ordinance (XXXI of 1979)---

----S. 136(1)(2)---Income-tax Act (XI of 1922), S. 66(1)---Reference application which was barred under S. 66(1) of the Act could not be treated as one under S. 66(2) of the Act and thus would not lie under S. 136(2) of the Income Tax Ordinance, 1979.

Commissioner of income-tax v. Asbestos Cement Industries Ltd. 1988 PTD 227 fol.

Shaikh Haider for the Department.

Nemo for Respondent.

Date of hearing: 16th October, 1991.

JUDGMENT

NASIR ASLAM ZAHID, J: --In respect of the case of the respondent/assessee for the assessment year 1977-78, the application under section 1360) of the Income-tax Ordinance, 1979, filed by the Commissioner of Income-tax, Central Zone "B", Karachi, was dismissed by the Income-tax Appellate Tribunal. In the circumstances, the present application under section 136(2) of the Ordinance has been filed by the department seeking answers to the following questions:--

"(1) Whether on the facts and in the circumstances of the case, the Income tax Appellate Tribunal was justified in holding that `un-retained income' as calculated by the Assessing Officer for the purpose of levy of surcharge was incorrect.

(2) Whether on the facts and in the circumstances of the case the Tribunal was justified in holding that the reference application was barred by 22 days by applying the provisions of section 66(1) of the Repealed Income-tax Act of 1922 instead of applying the provisions of section 136(1) of the Income-tax Ordnance of 1979?"

2. We have heard Mr. Shaikh Haider, learned counsel for the department. No one has appeared on behalf of the respondent/assessee who have remained absent.

3. It was pointed out to the learned counsel for the department that both questions have been considered and answered by this Court in earlier references. On the first question relating to un-retained income, reference may be made to the decision of this Court in the case of Commissioner of Income-tax v. Pakistan Tobacco Co. Ltd. reported in 1988 PTD fib, and, on the question of limitation reference can be made to the decision of this Court the case of Commissioner of Income-tax v. Asbestos Cement Industries Ltd reported in 1988 PTD 227. Mr. Shaikh Haider concedes to this position but submits that the department has taken the matters to the Supreme Court where the appeals are pending.

4. The two questions referred to us in this reference application have already been considered and answered in earlier cases by this Court. As such, this application is dismissed but with no order as to costs.

M.BA./C-243/KApplication dismissed.