2004 PLP 295 (PTD)

Commissioner of Income-tax v. National Refinery Ltd. 2003 PTD 2020 fol. (c) Income Tax Ordinance (XXXI of 1979)

S. 136

Question neither raised nor dealt with by the Appellate Tribunal

Effect

Such question could not be raised for first time before High Court. Rehan-ul-Hassan Naqvi and Miss Lubna Pervez for Appellant Aqeel Ahmed Abbasi for Respondents. Date of hearing: 2nd September, 2003. The following questions of law are raised by the appellant for determination by this Court: -- "(1) Whether on the facts and in the circumstances of the, case the learned Income Tax Appellate Tribunal, was right to uphold the finding of the respondent No. 1 as well as learned Commissioner of Income Tax (Appeals) that the attempt of the appellant to claim the business loss on account of overhead expenses seem to be a device to avoid proper taxation. (2) Whether on the facts and in the circumstances of the case the learned Income Tax Appellate Tribunal was justified in disallowing the claim of profit and loss expenses amounting to Rs.20,52,141 on the plea that adjustment of business expenses is not allowable against property income." The facts of the matter are that the appellant was engaged in the business of running Cinema Houses and Marriage Hall. During the assessment year 1996-97, the operation of running of Cinema Houses and Marriage Hall was suspended but the other activities remained in operation. Appellant filed return for assessment year 1996-97 declaring loss in the business of running of Cinema Houses and Marriage Hall. The appellant however showed income from rent collection and other income and in the return of income for the said year set off loss of business of Cinema Houses and Marriage Hall against the income derived from rent collection and other income. The Assessing Officer did not allow the set off. The Commissioner of Income Tax (Appeals) also confirmed the action of the Assessing Officer. The appellant further filed appeal before .the Tribunal who agreed with the order of the CIT (Appeals). Learned counsel for the appellant has contended that the order of the learned I.T.A.T. is non-speaking and further the Tribunal has not considered that loss incurred by the appellant in the business of Cinema Houses and Marriage Hall could be set off against the appellant's other income. In this regard the learned counsel referred to the provision of section 34 of the Income Tax Ordinance, 1979 (the Ordinance) and relied upon the case of Engro Chemical Pakistan Ltd. v. Additional Collector of Customs (2003 PTD 777) and the case of Ambika Silk Mills Co. Ltd. v. Commissioner of Income Tax Bombay City (1952) 22 ITR 58). Mr. Aqeel Ahmed Abbasi, learned counsel appearing for the Department has opposed the appeal and contended that both the questions raised in the appeal are question of facts. He alternatively contended that if the questions are found to have some implication of law, the same are not substantial question of law and thus are not liable to be considered by this Court. He has relied upon the case of Messrs Ahmad Karachi Halva Merchants arid Ahmad Food Products v. Commissioner of Income Tax South Zone Karachi (1982 SCMR 489) and an unreported judgment, dated 18-4-2003 of a Division Bench of this Court, in ITC No.192 of 2002 (of which one of Gulzar Ahmed J) was also a member. We have c9nsidered the matter. The learned counsel for the appellant has placed his specific reliance on section 34 of the Income Tax Ordinance, however, we find the two questions that have been mentioned in the Memo. of appeal in the first instance are questions of fact and this Court A has no jurisdiction to go into such questions within the meaning of section 136 of the Income Tax Ordinance, 1969. As regards the contention of the learned counsel for the appellant about the application of the provision of section 34 of the Income Tax Ordinance, it may be noted that this Court is only competent to examine or consider question of law, which had arisen out of the order of Tribunal or the question which was raised before the Tribunal and was dealt With by Tribunal or the question which was not raised before, the Tribunal, but was dealt with by the Tribunal or that the question which was raised, but has not been ,dealt with by the Tribunal. Reference in this regard is made to the case of Commissioner of Income Tax v. National Refinery Ltd., (2003 PTD 2020). In the present case the application of section 34 of the Income Tax Ordinance, 1979 has neither been before the Tribunal nor the Tribunal has dealt with. In this view of the matter, such a question cannot be raised for the first time before this Court. This appeal, therefore, has no merit and is accordingly dismissed. S.A.K./U-35/K Appeal dismissed.