RAVI TENTAGE INDUSTRIES, LAHORE VS COMMISSIONER OF INCOME TAX, ZONE-B, LAHORE
2001 P T D 1402
[Lahore High Court]
Before Nasim Sikandar and Jawwad S. Khawaja, JJ
Messrs RAVI TENTAGE INDUSTRIES, LAHORE
versus
COMMISSIONER OF INCOME‑TAX, ZONE‑B, LAHORE
C.T.R. No. 19 of 1990, decided on 12/12/2000.
Income Tax Ordinance (XXXI of 1979)‑‑‑
‑‑‑‑S.136‑‑‑Reference to High Court‑‑‑Scope‑‑‑High Court declined to answer the question referred to it when the assessee at whose instance the question had been referred was absent.
Dada Bhai H. Mama & Sons, Karachi v. Commissioner of Income tax (1967) 16 Tax 43 and M. M. Ispahani Ltd. v. Commissioner of Excess Profits Tax, West Bengal (1955) 27 ITR 188 fol.
Nemo for Petitioner Muhammad Ilyas Khan for the Revenue.
ORDER
NASIM SIKANDAR, J.‑‑‑The Lahore Bench of the Income‑tax Appellate Tribunal has framed the following questions for our consideration and reply:.
Assessment year 1983‑84:
(i) Whether on the facts and in the circumstance of the case the assessment for the year 1983‑84 was rightly re‑opened under section 65 of the Ordinance?
(ii) Partners only to firm, being constituted by two partners only, continued the eye of law after the death of the managing Partner, and whether after his death the proceedings against the firm without .. notice to the heirs of the deceased partners, were validly continued so as to culminate in an assessment valid in law?
(iii) Whether the Income‑tax Officer entire as right in law in revising the assessment in a proceeding under section 65 of the Ordinance or he should have confined himself only to the extent of the under assessment as escapement of income from tax, if any, in the case?
(iv) Whether there was material before the Tribunal, and whether that material could be used without confronting the assessee with it, for the Purpose of adopting a flat G. P. rate of 21 % in the export sales and 15% in the supplies account? Assessment ear 1986‑87:
Assessment year 1986-87:
(i) Whether on the facts and in the circumstances of the case, assessment on the income of peril of less than 12 months (1‑7‑1985 to 23‑5‑1986)was chargeable to tax in the assessmentyear 1986‑87?
(ii) Whether the assessment on the firm, in view of the death of a Partner, without service of notice on all the leggy heirs of the deceased was valid in law? or it should have been
2. Learned counsel for the Revenue by relying upon a reported judgment of a Division Bench of the Karachi High Court in re: Dada Bhai H. Mama & Sons Karachi v. Commissioner of income‑tax (1967) 16 Tax 43 states that in absence of the assessee at whose instance the aforesaid questions were referred, no opinion can be expressed by his Court.
3. In the said judgment their Lordships interpreted the Proves visions of section 66(5) of the Income‑tax Act, 1922 which are similar to section 136 of the Income Tax Ordinance under which the aforesaid questions have been referred to us. In the view of their Lordships the obligation of the High Court to decide the questions of law referred to it was contingent upon the hearing of the case. Further that the hearing of the case could not be made unless the party at whose instance the questions had been referred Court was present and had argued its case. Therefore, their Lordships found that they were not bound to answer the questions referred to it if the party at whose instance the questions had been referred, tad remained absent. Reference in that respect was cede to a decision of the Calcutta High Court West Bengal (1955) 27 ITR 188.
4. Being in respectful agreement with their Lordships in absence of the assessee at whose instance the above questions have been referred, ‑we will decline to answer and dispose of the reference accordingly.
M.B.A./R-50/L Answer declined.