1989 PTD 1008 (PLP)

MAHBOOB AHMAD, J.--This Tax Reference has been filed by the Commissioner of Income Tax, Lahore Zone, Lahore under subsection (1) of Section 66 of the Income Tax Act, 1922. It relates to assessment year 1971-72.

2. The facts giving rise to this Tax Reference are that assessment of Sh. Gulzar Ahmad, Lahore for the year 1971-72 was made by the Income Tax Officer Companies, Circle II, Lahore by his order dated 26th of November, 1971. Against this order the assessee riled an appeal before the Income Tax Appellate Tribunal (Pakistan), Lahore which was decided by the said Tribunal by its order dated 4th of May, 1972: By this order the Tribunal allowed exemption under section 15-BB of the Income Tax Act on the dividend income received from a company as well as on interest on borrowed capital invested in shares. The amount of dividend income amounts to Rs.9.000 and that of interest comes to Rs.2,78E.

3. The. Department did not: feel satisfied with the allowing of above exemptions on dividend income and interest by the Income Tax Appellate Tribunal and, therefore, institute the Reference under consideration under Section 66 (1) of the Income Tax Act, 1922. Following questions of law have been requested to be answered:- (1) "Whether on the facts and in the circumstances of the case the Tribunal was justified in holding that income from dividend declared out of the company's profits exempt under Section 15BB of the Income Tax Act is also exempt from tax in the hands of the share-holder of the company" (2) Whether on the facts and in the circumstances of the case the Tribunal was justified in holding that the interest paid to the bank on the borrowed investment for purchase of shares was allowable"

4. The learned counsel for the respondents has raised a preliminary objection to the maintainability and competence of the Tax Reference under consideration. He has submitted that with the Reference Application no certified copy of the order of the Tribunal: or for that matter of the other orders have been filed, which is a mandatory requirement by virtue of the provisions contained in Section 66 (2) of the income Tax Act, 1922 as amended by the Finance Ordinance No.XIV of 1971. The learned counsel relied on judgment of this Court passed in T.R. No.207/72 and T.R. No.167/73 and on a judgment of the Peshawar High Court in T.R.No.165/72 in support of his above contention. He urged that the Tax Reference is liable to be dismissed on the above preliminary objection alone. It was also urged by the learned counsel for the respondents that the decisions cited by him have not been questioned by the Department further and have attained finality.

5. The learned counsel apps wring for the petitioner when confronted with the above position could urge nothing to controvert the contention raised on behalf of the respondent.

6. In view of the foregoing position, the Tax Reference under consideration having been incompetently institute ed on account of non-filing of certified copy of the order of the Tribunal and not only that no application for dispensing with the filing of the said certified copy having been made the same is not maintainable and is accordingly dismissed. However, the parties are left to bear their own costs. M.B.A./C-45/ Reference incompetent.