SYED HAMID ALI SHAH, J.---None appeared on behalf of the revenue to prosecute this reference. We instead of dismissing the reference for non-prosecution, proceed to decide this old matter on merits.
2. The issues raised in the instant reference are pure questions of fact whether assessee is a manufacturer or a commission-agent.
2A. The applicant moved an application before Income Tax Appellate Tribunal for referring the following questions of law for the consideration of the Hon'ble High Court:-- "Whether on the facts and in the circumstances of 'the case, the Income Tax Appellate Tribunal was justified in holding that the assessee selling goods under his brand name can be held to be a Commission agent?"
3. The Tribunal refused to refer the case to the High Court by observing as under:-- "The contention raised as also the question of law as framed by the Department does not arise out of the order of this Tribunal. Firstly the question that Bakery goods being disposed of by the respondent bear its brand name was neither agitated nor ruled upon by this Tribunal. Secondly, the fact that whether or not the respondent ceased to be a manufacturer of bakery goods during the year under review was necessarily a question of fact as ruled upon by the learned first Appellate Authority and confirmed by this Tribunal. This being so we do not find the question as framed by the Department to have arisen out of the order of this Tribunal. At the best the matter pertained to holding the respondent to be a commission agent rather than a manufacturer which is purely a question of fact."
4. Bare perusal of the order of the Tribunal, dated 10-2-1993 reveals that the controversy between the applicant and the respondent is factual, which falls outside the purview of section 136(2) of the Income Tax Ordinance, 1979 (now repealed). The questions raised is not a question of law and we are not inclined to entertain the same. The instant reference application, has no merits and the same is dismissed.