2020 PLP 788 (PTD)

This order shall also dispose of PTR Nos. 34 to 36 of 2004 titled "Commissioner of Income Tax v. Machine Crafts (Pvt.) Ltd." as common questions of law and facts are involved in these cases.

2. Through this Reference Application under Section 133 of the Income Tax Ordinance, 2001 ("Ordinance of 2001"), following question of law, asserted to have arisen out of impugned order dated 18.12.2002, passed by learned Income Tax Appellate Tribunal, Lahore Bench, Lahore ("Appellate Tribunal"), has been proposed for our opinion:- "Whether on the facts and circumstances of the case, the ITAT was justified to declare that assessment has been barred by time as stay of proceedings granted by Honourable Lahore High Court expired after a period of six months whereas at that particular time the question of limitation of stay granted by Honourable Lahore High Court was under active consideration by Supreme Court of Pakistan and its judgment on this issue in February, 1999 and assessment were finalized well within time limitation if counted from the verdict of Supreme Court?"

3. Learned counsel for applicant-department, at the very outset, is confronted that proposed question of law is neither of law, nor arising out of impugned Appellate Tribunal's order. However, despite effort, he could no any satisfactory reply. 3 (sic) Arguments heard. Available record perused.

4. Perusal of impugned order shows that learned Appellate Tribunal upheld the findings of first appellate authority who held the assessment barred by time. It is also observed that delay could not be condoned on the ground that assessing officer was under wrong impression of stay granted by High Court operates beyond six months. It is also even otherwise observed that the effect of judgment of Hon'ble Supreme Court is not retrospective and same cannot give life in any case to the dead issues after expiry of limitation under the garb of the argument that issue was pending in the superior Courts. The relevant part of impugned findings is reproduced hereunder:- "The appeals of the department, therefore, on the issue are not sustainable and we agree with the learned first appellate authority that the ambient circumstances warrant cancellation of the orders. Furthermore, we agree with the learned first appellate authority that the effect of the Judgment of the Supreme Court is not retrospective and the same cannot give life in any case to the dead issues after expiry of limitation under the garb of the argument that the issue was pending in the superior courts. Regarding 1994-95 the first appellate authority has allowed relief after observing that the assessing officer had not given valid reasons for the additions. Moreover, he has allowed relief only in four claims while the additions were made in various others also. Here, again no valid argument exists to support the department for interference. All the appeals filed by the department are considered without merit and are dismissed."

6. Under the law, only substantial legal questions can be examined, which may arise from an order passed by the Appellate Tribunal, whereas questions which require no interpretation of any provision of law; rules or regulations, or its application on undisputed facts of a case, do not constitute a question of law to be decided by this Court under the reference jurisdiction. Reference is made to Messrs F.M.Y. Industries Ltd. v. Deputy Commissioner Income Tax (2014 SCMR 907); Commissioner Inland Revenue, Zone-I v. Messrs Industrial Chemicals (Pvt.) Ltd. (2017 PTD 756); Commissioner of Income Tax v. Ghee Corporation of Pakistan (Pvt.) Ltd. (2017 PTD 1167); Commissioner Inland Revenue v. Messrs Adeel Brothers (2017 PTD 1579) and Commissioner Inland Revenue, Zone-II v. Al-Hamad International Container Terminal (Pvt.) Ltd. (2017 PTD 2212).

7. Since proposed question is neither of law nor arising from impugned order, therefore, we decline to exercise advisory jurisdiction. This Reference Application, along with connected reference applications, is decided against applicant-department.

8. Office shall send a copy of this order under seal of the Court to the Appellate Tribunal as per Section 133(5) of the Income Tax Ordinance, 2001. SA/C-7/L References dismissed.