1989 PLP 124 (PTD)

SALEEM AKHTAR, J.--This is an application by the Department praying that the following question which arises out of the order of the Income-tax Appellate Tribunal may be decided; "Whether on the facts and in the circumstances of the case the learned Income-tax Appellant Tribunal is justified in holding that the additional tax under section 18-A should be charged for 15 months for the assessment year 1971-72."

2. The respondent/assessee carried on fire and general insurance 'business. In the assessment order for the year 1971-72 the Income-tax Officer ordered as followed:- "Assessed as per I.T.

30. Give credit of tax deducted as source Rs.5,

541. Issue notice under section 28 (3) for not filing the return of Income in time. Also issue notice under section 28 (3) for default in non-payment of tax under section 22-A and advance payment under section 18-A." In appeal 'filed by the assessee before the Appellate Assistant Income-tax Commissioner certain relief s were granted and with regard to levy of tax under section 18-A it was observed that except the above direction no separate order under section 18-A was passed. It was therefore, set aside with direction that the Additional Tax, if any, payable should be properly determined. The department and the respondent filed appeal separately against this order, both of which were heard by the Income-tax Appellate Tribunal and decided by order dated 6-6-1977. A perusal of this order shows that the assessee's authorized representative had verbally requested to allow him to raise the plea challenging the order passed in respect of levy of tax under section 18-A which was inadvertently left before the Appellate Assistant Commissioner, but the same was not allowed. The Department did not raise any ground against the order with regard to levy of additional tax. The department then filed an application under section 66(1) for referring questions of law arising from the order of the Tribunal. A copy of this application or the questions raised in it have not been filed. The Income-tax Appellate Tribunal rejected this application by order dated 6-2-1979. A perusal of this order will show that at entirely relates to the question of management expenses and this seems to be the only question agitated before the Tribunal. The question sought to be raised now was neither agitated in first appeal, second appeal or the application under section 66(1). As application under section 66(1) was rejected by the Tribunal the Department has presented this application under section 66(2) of the Income-tax Act, 1922.

3. Mr.Iqbal Naeem Pasha, the learned counsel for the respondent has pointed out that only such questions of law can be referred to the High Court, which arise from the order of the Tribunal. A perusal of the order of the Tribunal shows that it makes no reference to the setting aside of the levy of additional tax under section 18-A and, therefore, this question does not arise from the order of the Tribunal. It is well settled that under section 66 (1) or (2) only such questions of law are referred or raised which arise from the order of the Tribunal. If a legal plea has not been raised before the Tribunal and does not find place in the Judgment, the question relating to that plea can not be said to arise from the Judgment.

4. Mr. Shaikh Haider, learned counsel appearing on behalf of the Department has frankly conceded that the question as framed does not arise from the order of the Tribunal. We therefore, reject the application. M.BA./C-66/K Application rejected.