2001 PLP 2565 (PTD)

NASIM SIKANDAR, J.‑‑‑At the instance of a Private Limited Company, the Lahore Bench of the Income‑tax Appellate Tribunal has framed following question for our consideration and reply which is said to have arisen out of its order, dated 11‑4‑1991 recorded on departmental appeal for the assessment years 1991‑92:‑‑‑ "Whether on the facts and in the circumstances of the case the Tribunal was right in holding that assessment of income from property cannot be made on the basis of actual rent receipts under section 19. "

2. The facts in brief are that the assessee Company deriving income from property returned a loss of Rs.2,65,

610. The Assessing Officer enhanced the declared rent receipts resulting in an addition of Rs.2,00,000 in the income from property. The learned First Appellate Authority, however, deleted the same. On departmental appeal, a Single Bench of the Tribunal, however, adopted a middle way and set aside the addition. It was noted that while making the addition, the assessee was not properly confronted with the proposed addition. Also it was directed that income from property should be framed in accordance with section 19 of the Income Tax Ordinance read with section 21 after affording the assessee a fresh opportunity of being heard. Thereafter, at the request of the assessee, the aforesaid question was referred for our consideration and opinion.

3. After hearing the learned counsel for the parties, we are of the view that the question as framed does not arise‑ out of the order of the Tribunal. The Assessing Officer enhanced rent receipts by a certain sum while the learned first appellate authority found the addition to be unjustified mostly for the reason that in the earlier year a similar addition made was finally deleted in first appeal. The learned Tribunal finding that an appropriate opportunity was not given to the assessee proceeded to remand the case to the Assessing Officer again. The direction to frame an assessment under section 19 was made only in the operative part of the order. The issue if in the given circumstances, the income of the assessee from property was to be assessed under section 19 of the Ordinance was never mooted as such nor ruled upon by them. We are informed that after remand, the Assessing Officer has repeated the same addition and being unsuccessful before the First Appellate Authority, the assessee is again before the Tribunal. The objection of the Revenue that in the circumstances, this reference has become infructuous is not acceptable. However, at the same time, we are of the view that the question as framed having neither been mooted nor ruled upon by the Tribunal cannot be said to have arisen out of the order of the Tribunal. It hardly needs repetition that a question of law can be said to have arisen out of an order of the Tribunal only if it was raised, argued and ruled upon by the Tribunal. The finding of fact as recorded by the Tribunal also being not clear as to the reason on the basis of which a direction for computation of income under section 19 of the Ordinance was made, we cannot proceed to make an authoritative pronouncement, for, it will certainly prejudice the case of the assessee before the Tribunal.

4. Answer declined. C.M.A./M.A.K./H‑37/L ???????????????????????????????????????????????????????????????????? Answer declined.