Income Tax Ordinance (XXXI of 1979)

----S.136(2)---Income Tax Act (XI of 1922), S.34(1-A)(b)---Reference to High Court---Questions referred to High Court were:

Whether the Income Tax Appellate Tribunal was justified in observing that it was negligence on the part of the Income-tax Officer for not having called for information about export rebate in a case of export and was not an omission on the part of the assessee for having failed to disclose all material facts necessary for the assessment for that year and whether the Income tax Appellate Tribunal was justified in holding that the action of the Income Tax Officer under S.34 of the Act was barred by time, whereas the Income Tax Officer had rightly re-opened the case under S.34(1-A)(b) for omission and failure on the part of the assessee to disclose export rebate---Both questions being the questions of fact having been finally determined by the Tribunal, no exception could be taken to its decision---High Court, thus, declined to answer the questions.

Waheed Farooqui for Applicant. Iqbal Naeem Pasha for Respondent.

Date of hearing: 16th May, 1991.

JUDGMENT

MUHAMMAD HUSSAIN ADIL KHATRI, J.--- The respondent/assessee is a registered firm engaged in export business. The assessment for the years 1974-75, 1975-76 and 1977-78 was finalised under section 23(3) of the Income Tax Act, 1922. On certain informations, the Income Tax Officer re-opened the assessment for all the aforesaid three years under section 34 of the Act and, re-framed the assessment. On appeal filed by the applicant, the Appellate Assistant Commissioner cancelled all the assessment orders. The department filed further appeals before the Income Tax Appellate Tribunal. The appeals were dismissed. The department filed an application under section 136(1) before the Tribunal for referring the questions that had arisen from the decision of the Tribunal for decision of this Court. The above application was dismissed being barred by time.

The Commissioner of Income-tax, East Zone has, therefore, filed I.T.Rs. Nos.27, 28 and 29 of 1984 in this Court separately for each of the above three years with a request to frame the following questions for decision:--

"(a) Whether on the facts and the circumstances of the case of Tribunal was justified in holding the application of the applicant as barred by time;

(b) Whether the Income Tax Appellate Tribunal was justified in observing that it was negligence on the part of the Income-tax Officer for not having called for information about export rebate in a case of export and was not an omission on the part of the assessee for having failed to disclose all material facts necessary for the assessment for that year.

(c) Whether the Income Tax Appellate Tribunal was justified in holding that the action of the Income Tax Officer under section 34 of repealed Income Tax Act was barred by time, whereas the Income Tax Officer has rightly re-opened the case under section 34(1-A)(b) for omission and failure on the part of the assessee to disclose export rebate."

By this judgment, we propose to dispose of all the three reference applications. So far as the first question is concerned, it is covered by judgment of this Court reported in Commissioner of Income-tax v. Messrs Asbestos Cement Industries Ltd. 1988 P T D 227 and the other two questions being the questions of fact have been finally determined by the Appellate Tribunal and no exception can be taken to its decision. We, therefore, do not feel it necessary to answer the questions. All the three applications are, therefore, dismissed with no order as to costs.

M.BA./C-233/K????????????????????????????????????????????????????????? Applications dismissed.