1987 PLP 500 (PTD)

FALAK SHER J.--M/s. New Qaiser Engineering Company, Lahore, a registered firm and assessee to income-tax, has moved this reference application under section 62(2) of the Income-tax Act, 1922 (hereinafter referred to as Act) against order, dated 25-3-1985 of the Income-tax Appellate Tribunal, Lahore whereby the latter rejected, petitioner's application under section 66(1) of the aforementioned Act to refer the questions of law formulated by the petitioner in his application to this Court for answer.

2. The facts in brief giving rise to this petition are that the petitioner-firm in assessment return for the year 1977-78 declared undisclosed income at Rs.20,000 and paid the tax on the concessional rate of 30% as laid down under section 3-C of the Act. The Income-tax Officer noticed significant difference between the income declared by the petitioner and the income-tax assessed during the preceding 9 years and required the assessee to pay the tax of 30% on the balance amount of Rs.1,00,000 as the claim of intangibles was outside the scope of declaration of undisclosed income under section 3-C of the Act. He accor8ingly added the amount to the income under section 4(2-A) of the Act, as he was not satisfied with the explanation given by the assessee. On appeal preferred by the petitioner the Assistant Appellate Commissioner upheld the order of the Income-tax Officer with observation that the amount remaining in the hand of the assessee for a period of ten years had no reasonable explanation. Consequently he added the amount to assessee's income. The assessee preferred further appeal to the Income-tax Appellate Tribunal and the latter vide order dated 20-8-1984 allowed the appeal and remanded the case with the following observation:- . "All these points make it doubtful whether the assessee firm had a cash of Rs.1,00,000 with them for all these years. The learned AAC has also pointed out that if the cash had been deposited in the bank, the position might have been different in regard to the explanation of the credit. We are of the view that the case needs to be examined afresh considering all the issues pointed out above before arriving at final decision. On this point the order of the ITO and the learned AAC are vacated for passing a fresh order after examining all these points and affording an opportunity to the assessee." The petitioner thereafter moved application for referring the questions formulated in the application to this Court for decision, which was rejected by respondent No.2 on 25-3-1985 holding that no question of law requiring reference to this Court arises out of the impugned orders. Hence this petition.

3. The questions proposed in the instant reference-application to this Court for answer are as follows:- (1) Whether the Tribunal has acted in the proper and legal exercise of its, jurisdiction in setting aside the order of assessment, and whether in the circumstances of the case, the Tribunal had the jurisdiction to do so? (2) Whether there was authority in the Assessing Officer to assess under section 23(3) of the Act what had been declared as cash in hand under section 3-C of the Income-tax Act, 1922 and had been assessed under section 3-C. (3) Whether the setting aside order by the Tribunal amounts to affording the income-tax Officer opportunity to plug holes in his case, and whether such an order is valid in law? (4) Whether the setting aside order by Tribunal amounts to 'extending the limitation for assessment in the case, and whether such an order is legal?

4. Undoubtedly the learned Income-tax Appellate Tribunal has remanded the case for fresh decision on all the issues raised by the petitioner in this case. Pursuant to the order of remand the Tribunal seized of the matter has yet to decide those questions afresh. It, therefore, appears preposterous to adjudicate upon those questions, which so far have not been decided finally by the Tribunal itself and there is no conclusive finding of the respondent No.l on those questions either. It, therefore, may be a futile exercise to examine the validity of the proposed questions, which may or may not arise in the final order passed by the Tribunal.

5. Subject to the observation made above this petition is dismissed in limine. M.B.A/N-37/L Petition dismissed.