Income Tax Ordinance (XXXI of 1979)---

----S.136(1)---Appeal---Limitation---Appeal related to year prior to 1979 when the Income Tax Ordinance, 1979 was enforced---Period of limitation in such cases either .for making a reference to the Tribunal or to the High Court, would be governed by S.136(1) of the Ordinance where the limitation of 90 days had been prescribed.

Commissioner of Income-tax v: Asbestos Cement Industries Ltd., Karachi and others 1993 P T D 459 fol.

Ch. Muhammad Ishaq for Petitioner. Rasheed Ahmed Sheikh for Respondent.

Dates of hearing: 8th and 9th May, 1993.

JUDGMENT

IRSHAD HASAN KHAN, J.--This judgment shall dispose of Writ Petitions Nos.2070 of 1986, 2071 of 1986, 2072 of 1986, 2076 of 1986, 2077 of 1986, 2078 of 1986, 2079 of 1986, 2080 of 1986, 2081 of 1986, 2082 of 1986, 2442 of 1986, 2443 of 1986, 2444 of 1986, 4106 of 1986, 4107 of 1986, involving common question of law as to whether in the matter of making a reference before the Income Tax Appellate Tribunal the period of limitation of 60 days prescribed under section 66(1) of the Income Tax Act, 1922, hereinafter referred to as the Act, or the period of limitation of 90 days prescribed under section 136(1) of the Income Tax Ordinance, 1979, hereinafter referred to as the Ordinance, would govern the references.

2. In all the cases the Income Tax Appellate Tribunal held the references as barred by time by invoking the provisions of section 66(1) of the Act. It is a common ground that if section 136(1) of the Ordinance had been applied to these cases all the references would have been within limitation.

3. The relevant dates in relation to the orders passed by the Income Tax Appellate Tribunal in appeals before it, the dates of service of the petitioners with the notices, the dates on which the references were filed and the dates of decisions by the Income Tax Appellate Tribunal show that all the appeals relate to years prior to 1979 when the Ordinance was enforced w.e.f. 1-7-1979. The assessment orders were also passed in all the cases, except in W.P. No.4107 of 1986, prior to the enforcement of the Ordinance but the rejection of the references by the Income Tax Appellate Tribunal had been made after repeal of the Act. The controversy involved herein was also subject-matter of a dispute raised before the Supreme Court in the case of Commissioner of Income-tax v. Asbestos Cement Industries Ltd., Karachi and others 1993 PTD 459 wherein it was held that the period of limitation in such cases either for making a reference to the Tribunal or to the High Court, is governed by section 136(1) of the Ordinance where the limitation of 90 days has been prescribed. Respectfully following the ratio laid down in the precedent case we hold that the Income Tax Appellate Tribunal has erred in law in applying the provisions of section 66(1) of the Act instead of section 136(1) of the Ordinance. The result is that the impugned orders of the Income Tax Appellate Tribunal rejecting the references as time-barred are declared as without lawful authority and of no legal effect. The reference applications filed by the Income Tax Department shall be treated as pending before the Income Tax Appellate Tribunal and shall be disposed of by it on merits and in accordance with law. The writ petitions are accepted with no orders as to costs.

M.BA./C-24/1,Petitions accepted.