(a) Income Tax Act (XI of 1922)---

----S.10(4)(d), Explanation III, (as added by Finance Act, 1975)---Provision of Explanation III to S.10(4)(d) of the Act as added by Finance Act, 1975 could be deemed to have retrospective effect.

Pakistan Petroleum Ltd. v. Commissioner of Income Tax (Central), Karachi 1985 P T D 1 fol.

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

----S. 136(1) & (2)---Income Tax Act (XI of 1922), S.66(1)---Reference application having been dismissed under S.66(L) of the Act of 1922 as barred by time, could not be treated as under S.136(1) of the Ordinance---Such an application, would not lie under S.136(1) of the Ordinance of 1979.

Commissioner of Income Tax v. Asbestos Cement Industries Ltd. 1988 PTD 227 fol.

Shaikh Haider for Applicant. Sajid Zahid for Respondent.

Date of hearing: 30th April, 1991.

JUDGMENT

MUHAMMAD HUSSAIN ADIL KHATRI, J.--- The respondent submitted return for the assessment year 1973-74, wherein it claimed contribution to Provident fund at Rs.10,137 as perquisite under section 10(4)(d). The income tax Officer framed the assessment under section 23(3) of the Income Tax Act, disallowing the aforesaid claim. On the appeal preferred by the assessee, the Appellate Assistant Commissioner allowed the said claim. The department being dissatisfied with the Appellate Order, filed further appeal before the Income Tax Appellate Tribunal which was dismissed. The Commissioner of income-tax being dissatisfied with the judgment of the Tribunal, submitted an application under section .136(1) of the Income Tax Ordinance, 1979, requesting the Appellate Tribunal to refer the question of law that arose from the order of the Tribunal for the decision of this Court.

The Tribunal, however, dismissed the said application and refused to state the case on the ground that the application under section 136(1) of the Income Tax Ordinance, 1979, was barred by limitation.

The Commissioner of Income-tax, Central Zone `B' has, therefore, filed present reference application under section 136(2) of the Ordinance with the request to answer the following questions of law:--

(1) Whether on the facts and in the circumstances of the case the Income Tax Appellate Tribunal was justified in holding that Explanation III to section 10(4)(d) of the Income Tax Act added by the Finance Act of 1975 can be deemed to have retrospective effect?

(2) Whether on the facts and in the circumstances of the case the Tribunal was justified in holding that the reference application to be barred and to apply provisions to section 66(1) of the Repealed Income Tax Act of 1922 instead of applying the provisions of section 136(1) of the Income Tax Ordinance of 1979?"

We have heard Mr. Shaikh Haider, learned Advocate for the applicant. None appeared for the respondent. The first question came up for consideration before a Division Bench of this Court in the case of Pakistan Petroleum Ltd. v. Commissioner of Income Tax (Central), Karachi, reported in 1985 P T I) 1. After referring to the case-law on the subject the said question was answered in affirmative.

So far as the second question is concerned, it is also covered by a Division Bench judgment of this Court in the case of Commissioner of Income- tax v. Asbestos Cement Industries Ltd. reported in 1988 P T D 227.

We are in respectful agreement with the aforesaid earlier decisions of this Court.

Since no exception can be taken to the decision of the Tribunal, the application is dismissed with no order as to costs.

M.BA./C-235/K Application dismissed.