1989 PLP 576 (PTD)

SALEEM AKHTAR, J--This is an application under section 66 (2) of the Income Tax Act. The respondent was drawing income from various sources including dividends and interest. In her return of income for the assessment year 1973-74 the respondent declared Rs.136, 801 as casual income but later revised it and claimed this amount exempted from income-tax as it represented the remittance made under M.L.R. 104 and

105. The Income Tax Officer observed that this amount would be exempted under M.L.R. 104 and 105 provided it was repatriated to Pakistan before 31st March, 1972. As the said amount was repatriated after this date the same was included in the total income of the assessee and was charged to income tax. In appeal the Appellate Assistant Commissioner, Income Tax confirmed the order of the Assessing Officer and dismissed the appeal. The applicant filed an appeal before the Tribunal and it was held that the said amount repatriated by the assessee was not chargeable to tax in Pakistan. The Tribunal held that the amount repatriated was not a revenue but capital dividend. The applicant then filed an application under Subsection (1) for reference of the following questions: "(1) Whether upon the facts and in the circumstances of the case the assessee was entitled to the exemption from Income-tax under M.L.R. 104/105 in spite of the fact that he/she failed to remit the funds to Pakistan before the specified date? (2) Whether the Hon'ble Tribunal was justified in holding that the repatriated amount was not liable to tax under the Income Tax Act, 1922? This application was dismissed with the observation that the first question does not arise from the order of the Tribunal and the main reason for ranting exemption was that the repatriated amount was not a revenue receipt but a capital remittance which finding was not challenged by the applicant. Therefore, question No.2 also stood answered and no reference was required. The applicant has filed this application for permission to raise the, aforesaid question which may be considered and answered by this Court. From the order passed by the learned Tribunal it seems clear that it has taken the view that the amount which was repatriated and declared under M.L.R. 105 was not revenue receipt but it was capital remittance. It has decided this question of fact after taking into consideration the material on record that the disputed amount represented the sale proceed of the share holding in a foreign country which were sold with the permission of the State Bank of Pakistan and was then repatriated to Pakistan. This finding of fact given by the Tribunal has not been challenged by the applicant. The Tribunal has not granted relief under the provision of M.L.R. 104 and

105. It has proceeded on a completely different premises. Even otherwise under M.L.R. 105 only such remittance was exempted from tax, which was otherwise taxable in Pakistan. If the remittance was not in the nature of income or revenue profit but capital it could not be charged to tax In, this view of the matter question No.l does not arise from the order of the Tribunal. So far question No.2 is concerned as observed earlier, the Tribunal's order is based on a finding of fact which has not been challenged. The Department therefore can not be allowed to raise this question also. The application is dismissed. M.BA./C-78/K Application dismissed.