NASREEN ASAD HAYAT VS C.I.T., CENTRAL ZONE, LAHORE
2002 P T D 2703
[Lahore High Court]
Before Naseem Sikandar and Jawwad S. Khawaja, JJ
NASREEN ASAD HAYAT
Versus
C.I.T., CENTRAL ZONE, LAHORE
C. T. R. No. 123 of 1993, decided on /01/.
th
January, 2001. Income Tax Ordinance (XXXI of 1979)---
----S.136(1)---Reference to High Court---Absence of assessee---Effect-- Question for reference---Validity---High Court declined to answer the question in absence ~ of the assessee at whose instance such question had been referred.
Dada Bhai H. Mama & Sons, Karahi 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 rel.
Nemo for Petitioner.
Shafqat Mehmood Chohan for the Revenue.
Date of hearing: 18th January, 2001.
ORDER
NASEEM SIKANDAR, J.---The Lahore Bench of the Income Tax Appellate Tribunal has framed the following questions for our consideration and reply:---
(i)Whether on the facts and in the circumstances of the cases the Commissioner of Income Tax (Appeals) has upheld the legality of the addition under section 13 (1) (a) and whether the Tribunal has acted rightly in law in confirming the CIT s order?
(ii)Whether on the facts and in the circumstances of the case, the Tribunal was right in law in upholding the order of the CITA (A) which set aside the additions under section 13 (1) (a) for a de novo qualification of the accretion- to the assessee's wealth from agricultural income?
(iii)Whether there was basis and material for the quantum of addition under section 12(1)(a) by the Assessing Officer? If not so, whether the setting aside order by the CIT (A) amounts to affording illegal further opportunity to the Assessing Officer to improve his case and enlarge limitations and whether the Tribunal was right in law in upholding the order of the CIT (A) with regard to addition under section 13(1)(a)?
(iv)Whether on the facts and in the circumstances of the case the assessee had duly explained the accretion to her wealth where for the Assessing Officer has no jurisdiction to enter upon and investigate into the quantum of her exempt agricultural income?
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 this Court.
3. In the said judgment their Lordships interpreted the provision 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 question 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 to the 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 question had been referred, had remained absent. Reference in that respect 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 questions have been referred, we will decline to answer and dispose of the reference accordingly.
C.M.A./M.A.K./N-209/L
Reference declined.