LALAZAR GLASS & SILICATE FACTORY, FAISALABAD VS COMMISSIONER OF INCOME-TAX, FAISALABAD
2001 P T D 1502
[Lahore High Court]
Before Nasim Sikandar and Jawwad S. Khawaja, JJ
LALAZAR GLASS & SILICATE FACTORY, FAISALABAD
versus
THE COMMISSIONER OF INCOME‑TAX, FAISALABAD
C.T.R. No.348 of 1991, heard on 13/11/2000.
Income Tax Ordinance (XXXI of 1979)‑‑‑
‑‑‑‑S. 136‑‑‑Reference to the High Court‑‑‑Scope‑‑‑If the assessee at whose instance the question was referred to the High Court was absent, High Court was not bound to answer the question so referred.
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 ref.
Nemo for Petitioner.
Muhammad Ilyas Khan for Respondent.
Date of hearing: 13th‑ November, 2000.
JUDGMENT
NASIM SIKANDAR, J.‑‑‑The Lahore Bench of the Income‑tax Appellate Tribunal has framed the following question for our consideration and reply:‑‑
"Whether, on the facts and circumstances of the case the validity of proceedings under section 116 and the imposition of penalty under section 111 of the Income Tax Ordinance, could be challenged when the assessment framed under section 62 read with section 65 were not appealed against being Agreed Assessment?"
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 question was referred, no opinion can be expressed by this Court.
3., In ‑the said judgment their Lordships interpreted the provisions of section 66(5) of the Income‑tax Act, 1992 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 9f the case could not be made unless the party at whose instance the question had been referred to the Court was present and had argued its case. Therefore, their Lordships found that they were not bound to answer 'the question referred to it if the party at whose instance the question had been referred had remained absent. Reference in that aspect was made to a decision of the Calcutta High Court in Re: M.M. Ispahani Ltd. v. Commissioner of Excess Profits Tax West Bengal (1955) 27 ITR 188.
4. Being in respectful agreement with their Lordships in absence of the assessee at whose instance the above question was referred, we will decline to answer and dispose of the reference accordingly.
M.B.A./L-15/LReference declined.