COMMISSIONER OF INCOME TAX, RAWALPINDI VS Mst. SHAKEELA BANG, 2002 PTD-LAHORE-HIGH-COURT-LAHORE 1209 (2002)

Income Tax Ordinance (XXXI of 1979)---

----Ss. 56, 61, 135 & 136(1)---Reference to High Court ---Scope-- Question of law not raised before Income Tax Appellate Tribunal-- Effect---Dispute was with regard to service of notice on assessee under S.56 of the Income Tax Ordinance, 1979---Tribunal having found that the notice was never served upon the assessee, dismissed the appeal of the Authorities---Validity---High Court in reference jurisdiction under S.136(1) of the Income Tax Ordinance, 1979, could proceed only on the findings recorded and could answer a question which arose out of order of the . Tribunal recorded under S.135 of the Income Tax Ordinance, 1979---Order on a reference application under S.136(1) of the Income Tax Ordinance, 1979, could not be equated with the order of the Tribunal recorded under S.135 of the Income Tax Ordinance, 1979-- Where the Tribunal had recorded express finding that notice under S.56 of the Income Tax Ordinance, 1979, was never served upon the assessee, the question of validity of returns .Bled in response thereof could not arise at all---Issue being raised by the Authorities as question of law was neither mooted before the Tribunal nor it was ruled upon by them---High Court could answer only a question which had been mooted before the Tribunal and had either been ruled upon by them or the same had arisen as a natural result of that order---Neither of the two conditions having been answered in the present case, High Court refused to reply the questions as framed---Reference was declined in circumstances.

Malik Muhammad Nawaz for Petitioner.

Nemo for Respondent.

Date of hearing: 17th January, 2002.

JUDGMENT

NASEEM SIKANDAR, J.---This is a case stated by the Income Tax Appellate Tribunal,- Islamabad Bench, Islamabad framing following question of law, at the instance of CIT(Appeals), Rawalpindi Bench which is stated to have arisen out of the order of that Bench, dated 12-2-1991:---

"Whether on the facts and in the circumstances of the case the Income Tax Appellate Tribunal was justified to reject Department's appeals and uphold the Commissioner of Income Tax (Appeals') order on the ground that the notice issued by the Income Tax Ordinance, 1979 was not properly served can the assessee notwithstanding the fact that the assessee had filed the returns of her income as required by the said notice?"

2. The respondent is an individual. On receipt of an information that during the assessment years 1984-85 and 1985-86 she received a sum of Rs.561,574 as annuity from the Government of the United States of America as widow of their former employee Mr. Amanullah was required to file returns. According to the department in reply to the notice served upon her under section 56 of the Income Tax Ordinance, 1979 (hereinafter referred to as the Ordinance) she submitted returns for the aforesaid years. Subsequently a notice under section 61 of the Ordinance was also sent to her on 29-4-1987. However, despite that notice she did not appear and accordingly ex parte assessments at Rs.280,782 each for the said charge years were framed under section 63 of the Ordinance.

3. On appeal the learned CIT(Appeals) cancelled the assessments for both the years on the ground that notice issued under section 56 of the Ordinance on 15-4-1987 for 15-6-1987 was

not properly served upon her. The Departmental appeals were rejected by the learned Tribunal after discussing the issue of service of notices under sections 56 and 61of the Ordinance, 1979. Learned Members concluded that there was no evidence on record as to the service of notice on the respondent issued under section 56 of the Ordinance. Therefore, the impugned order of the First Appellate Authority cancelling both the assessments was maintained.

4. After hearing the learned counsel for the Revenue, we have concluded that the question as framed does not arise out of the order of the Tribunal. His assertion that in reference application the department had properly brought home that a notice under section 56 had actually been served upon the assessee will not change the legal position. It is that this Court in reference jurisdiction under section 136(1) of the Ordinance proceeds only on the findings recorded and answers a question which arises out of the order of the Tribunal recorded under section 135 of the Ordinance. An order on a reference application under section 156(1) cannot be equated which order of the Tribunal recorded under section 135 of the Ordinance. In their order under section 135 the Tribunal recorded an express finding that a notice under section 56 of the Ordinance was never served upon the assessee. Therefore, the issue of validity of the returns filed in response thereof could hardly arise at all. Secondly, the issue now being raised as a question of law was never mooted before the Tribunal nor it was ruled upon by them. It is established law that this Court answers only a question which was mooted before the Tribunal and was either ruled upon by them or it arose as a natural result of that order.

5. Since neither of the two conditions is answered in this case, we will refuse to reply the questions as framed.

6. Answer declined.

Q.M.H,/M.A.K./C-145/LReference dismissed.