1989 PLP 817 (PTD)

(b) Income-tax Ordinance (XXXI of 1979) - --S. 136 (2)--Limitation Act (IX of 1908), S. S -Delay in Filing of application of Reference to High Court --Contention that Tribunal s order was void and thus limitation was no bar to such an order was misconceived. Conforce Ltd. v. Syed Ali Shah P L D 1977 SC 599 ref. M.Enver Shaukat for Petitioner. Malik Muhammad Nawaz for income Tax Deptt. MUHAMMAD AFZAL LONE, J.--Through this application under Section 136 (2) of the Income Tax Ordinance. 1979, certain questions of law said to have arisen out of the Tribunal's order dated 9-5-1985, are sought to be referred to the High Court for its opinion. Earlier the petitioner filed writ Petition No.3064/88 on 6-6-1988 which was withdrawn on 13-6=1988 as he wanted to avail of the remedy provided by the Ordinance We find that the reference application is barred by time and accompanied by an application under Section 5 of the Limitation Act:

2. It is stated that the petitioner's application under, Section 136 (1) was refused by the Income-tax Appellate Tribunal on 15-12-1987. On 21-2-1988 he moved the Tribunal under Section 156 but this application was turned down on 29-3-1988. It was thereafter that the petitioner invoked the writ jurisdiction of this Court and by then the time for filing reference application under Section 136 (2) had already expired. Even otherwise the instant application has been filed 32 days after the withdrawal of the writ petition. As laid down in Mst. Allah Bachai v. Haji Wahid Bakhsh (1974 S C M R 108), after expiry of limitation delay of each day has to be explained. However, there is no plausible explanation for this delay.

3. Faced with the situation the learned counsel contended that the Tribunal's order is void and limitation is no bar to challenge such an order. The argument is misconceived. Leaving aside the validity of the Tribunal's order dated 9-5-1985, the fact remains that conceivably no such infirmity UM be attributed to the order dated 15-12-1987. In any case in this behalf a reference to Conforce Ltd. v. Syed Ali Shah (P L D 1977 SC 599) will provide: "...However, in view of the frequency with which gross negligence is sought to be condoned on the plea that the impugned order was void or without jurisdiction, we would observe that a void order or an order without jurisdiction, is only a type of an illegal order passed by a Court and the fact that it has been passed and that it may, therefore create rights cannot be altered by describing it as void or without jurisdiction. And, further, the expressions void orders' and `orders without jurisdiction' are overworked expressions...." We, therefore, hold that there is no sufficient cause for condonation of delay. The reference application being hopelessly barred by time is dismissed in limine. M.B.A./A-624/L Application dismissed.