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

----S. 66(1)---Income Tax Ordinance (XXXI of 1979), Ss. 136(1) & 166(2)-- Reference to High Court---Limitation---Reference application was filed before Income Tax Appellate Tribunal after the expiry of 60 days provided under S.66(1) of the Income-tax Act, 1922 but within the period of 90 days prescribed in S. 136(1) of the Income Tax Ordinance---Tribunal dismissing the application as barred by time on the ground that although reference application was filed after promulgation of Ordinance 1979 but since the assessee had filed his return of income before the commencement of the Ordinance, period of limitation would be governed by the provisions of the repealed Income Tax Act by virtue of savings provided in S. 166(2) of the Ordinance---Period of 60 days limitation as provided in S. 66(1) of the Act, held, was rightly applied by the Tribunal.

Commissioner of Income Tax, Central Zone `B', Karachi v. M/s. Asbestos Cement Industries Ltd. 1988 PTD 227 and Commissioner of Income Tax v. S.M.Naseem Allahwala 1991 PTD 843 fol.

(b) Income-tax Act (XI of 1922)---

----S. 66(1)---Time-barred application for reference ---Condonation of delay-- Income Tax Appellate Tribunal has no power to condone the delay---Where the application for reference is made beyond the prescribed time, Income Tax Appellate Tribunal has no discretion but to dismiss the same.

Nasrullah Awan for Applicant.

Ibrahim Pishori for Respondent.

Date of hearing; 12th February, 1992.

JUDGMENT

SYED HAIDER ALI PIRZADA, J: --The present reference application under section 136(2) of the Income Tax Ordinance, 1979, has been preferred by the Commissioner of Income Tax, Central Zone, `C', Karachi.

The facts leading to the filing of the above reference are that the respondent/assessee is banking Company. During the course of assessment it was observed by the Assessing Officer that in the case of debtors of the assessee bank the outstanding debt balances had neither become bad nor irrecoverable.

Since all efforts for recovery were not taken, as such the Income Tax Officer did not allow the claim of balance amount of debt outstanding against the assessee. In appeal the learned Appellate Assistant Commissioner of Income Tax held that the assessee bank was justified in writing off the claim. The Department/applicant has preferred an appeal before the Income Tax Appellate Tribunal. The learned Income Tax Appellate Tribunal did not agree with the Department's contention that there was possibility of recovery of the balance amount had the sponsoring directors were also held responsible. In this view of the matter the appeal filed by the department was dismissed. The present applicant then filed an application to the Income Tax Appellate Tribunal under section 136(1) of the Income. Tax Ordinance 1979, requesting to refer the following question to this Court:--

"Whether on the facts and in the circumstances of the case the Income Tax Appellate Tribunal was correct in holding that the amount of Rs.43,74,493 claimed by the assessee was admissible under section 10(2)(ix) of the repealed Act, 1922."

The Tribunal dismissed the aforesaid reference application by order dated 16-2-1984, on the ground that the reference application was barred by 30 days. The Tribunal also observed that no application was filed for condonation of delay in filing the Reference Application. The applicant has, therefore, sought answer to the following additional question also: --

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

This issue has been dealt with in several cases, holding that if the Reference Application is made beyond the prescribed time, Tribunal has no discretion but to dismiss the same unless the statutory provision to the contrary, is made and that the effect of the operation of clauses (a) and (i) of subsection (2) of section 166 of the income Tax Ordinance, 1979 is that all the proceedings including an application for reference to the High Court in relation to the assessment year in respect of which the Return of Income was filed before July 1, 1979, i.e. the date of commencement of the Ordinance, must be dealt with under the Income Tax Act, 1922, as if the Ordinance had not been passed. Reference may be made to the case of Commissioner of Income Tax, Central Zone `B', Karachi v. M/s. Asbestos Cement Industries Ltd., reported in 1988 PTD 227. This decision was filed in a case of Commissioner of Income Tax v. S.M. Naseem Allahwala 1991 PTD 843.

Mr. Ibrahim Pishori, candidly conceded that the question is covered by the aforesaid cases. We are in respectful agreement with the above decisions. .

In view of the above legal position no exception can be taken to the decision of the learned Appellate Tribunal and we accordingly dismiss the application with no order as to cost. In view of this it is not necessary to answer the question referred to learned Income Tax Tribunal.

M.BA./C-279/K Application dismissed.