NASIR-UL-MULK,C.J.---The Commissioner Income Tax/Wealth Tax Peshawar has filed this Tax Reference for determination of the following question of law:-- "Whether on facts and in the circumstances of the case the learned Income Tax Appellate Tribunal was justified in law, to delete the disallowance of "bonus paid to employees" whereas the Assessing Officer rightly disallowed the claim as being contrary to the provisions of section 23(i), (viii) of the Income Tax Ordinance, in view of the declared loss."
2. The assessee respondent is Associated Industries Limited, Nowshera and the assessment pertains to the year, 1992-93. The Assessing Officer had by order, dated 5-6-1993 disallowed the bonus to the employees amounting to Rs.45,15,000 on the ground that the assessee had been incurring heavy losses and, therefore, ought not to have paid the bonuses to the employees. That order was upheld by the Commissioner of Income Tax (Appeals) Peshawar. Both the orders were assailed by the assessee before the Income Tax Appellate Tribunal, Peshawar. The Tribunal allowed the appeal and so also the claim of the assessee regarding the bonuses by order, dated 4-10-1995.
The Commissioner of Income Tax made an application to the Tribunal for reference to the High Court to determine the question of law formulated above. That application was dismissed on 22-8- 1996 as time-barred. Thereafter the Commissioner Income Tax filed the present reference on 6-1- 1997.
3. The learned counsel appearing for the assessee-respondent raised a preliminary objection that the Tax Reference is barred by time in that the same should have been filed within 90 days under subsection (3) of section 136 of the Income Tax Ordinance, 1979 from the date of rejection of the application.
4. Section 136(2) envisages three situations. Under its subsection (1), the Income Tax Appellate Tribunal can on the application of a party, refer a question of law to the High Court for determination. In case the Tribunal rejects the application the party, may within 120 days, file a Reference Petition directly in the High Court under subsection (2) of section 136. However, if the application to the Tribunal is rejected as A time-barred the Reference to the High Court is to be made under subsection (3) of section 136 within 90 days and the High Court is only to determine as to whether the decision of the Tribunal was correct. Since the petitioner's application before the Tribunal was dismissed as time-barred, the present Reference was maintainable under S.136(3) of the Income Tax Ordinance. As the same was not filed within 90 days it was barred by time.
Consequently, the Tax Reference is dismissed as time-barred.