MUHAMMAD NASEEM VS COMMISSIONER OF INCOME TAX, 2006 PTD-LAHORE-HIGH-COURT-LAHORE 2318 (2006)

Income Tax Ordinance (XXXI of 1979)---

----S. 136(2)---Reference to High Court---Question proposed by assessee reframed by Tribunal---Refusal of Tribunal to refer reframed two questions to High Court for one being not relevant, while other being against the express dictates of law---High Court rejected, reference application.

Siraj ud Din Khalid for Petitioner.

Muhammad Ryas Khan for Revenue.

ORDER

This is an application under section 136(2) of the Income Tax Ordinance, 1979.

2. According to the statement of the case the petitioner is an individual and during the period relevant to the assessment years 1990-91 to 1994-95 derived income from sale of cloth on whole basis at Samundri.

3. For the aforesaid years in question a consolidated assessment order was framed on 8-1-1996 respectively at Rs.60,000, 65,000, 70,000, 72,000 and 75,000 as against earlier disclosed by the assessee at Rs.22,000, ,24,000, 26,000 28,000 and 30,000. Subsequently the concerned IAC on 31-12-1999 revised the assessment for the year 1993-94 after holding that the alleged gift of Rs.16,50,000 claimed to have been received by the assessee from one Amir Ali donor was not sufficiently proved on record. Therefore, a direction was made to the Assessing Officer to make a fresh assessment by treating the amount of the aforesaid alleged gift as an income of the assessee.

4. The appeal filed by the petitioner against exercise of jurisdiction by-the IAC under section 66-A of the said Ordinance was unsuccessfully challenged before the Lahore Bench of the Income Tax Appellate Tribunal. A Division Bench of' the Tribunal on 29-8-2000 refused to interfere for the petitioner/assessee. Thereafter, the petitioner submitted following questions of law for reference to this Court which statedly arose from the said order of the Tribunal:--

(1) "Whether a consolidated order for 1990-91 to 1996-97 passed under section 62 could be treated as erroneous insofar as pre-judicial to the interest of the Revenue in part only for 1993-94?

(2) Whether on the facts and circumstances of the case the officer passing the order under section 66-A for assessment year 1993-94 without issuing fresh show-cause notice has exercised the power lawfully?

(3) Whether on the facts and circumstances of the case there was any material with the Tribunal to hold that the gift of Rs.16,50,000 was accepted by the Assessing Officer without proper documentation and application of mind?

(4) Whether the Tribunal was right to uphold the impugned order on the ground that the assessment was not made under the correct norms and procedure for acceptance of gift when under the law no procedure has been prescribed for the purpose?

(5) Whether on the facts and in the circumstances of the case the discretion exercised by the Assessing Officer in accepting the gift could be disturbed by the higher authority?"

5. Learned members of the Tribunal on 15-6-2001 referred only the following two questions which were earlier re-framed:--

(1) "whether a consolidated order for 1990-91 to 1996-97 passed under section 62 could be treated as erroneous insofar as prejudicial to the interest of Revenue in part only for 1993-94?

(2) Whether on the facts and in the circumstances of the case the learned Tribunal was justified in holding that the gift of Rs.16,50,000 lacks legal requirements and that the IAC had .the jurisdiction to cancel its acceptance by the ITO exercising his powers under section 66(A)?

6. Having heard the learned counsel for the parties we will agree with the learned counsel for the Revenue that the aforesaid two questions of law as referred by the Tribunal as PTR 5 of 2002 sufficiently manifest the real controversy between the parties.. The refraining of the two questions, we will agree with the learned Members of the Tribunal, they adequately answered the provisions of section 136(2) of the late Income Tax Ordinance, 1979. According to the learned Members of the Tribunal question No.1 was not relevant, while question No.2 as proposed was against the express dictates of law which permitted a successor in office to proceed in the matter from the stage it was earlier reached by the predecessor. It was also observed that questions Nos. 3, 4 and 5 primarily revolved around the one issue. Therefore, they re-framed the proposed question No.2 as question No.1 and the proposed questions Nos.3, 4 and 5 as question No.2. That exercise by the learned Members of the Tribunal does not appear either against record or the provisions of section 136(1) as these existed at the relevant time. Therefore, we will refuse to entertain the questions as framed by the petitioner for our consideration and answer.

7. Application rejected.

S.A.K./M-413/LApplication rejected.