MR. JUSTICE KHAWAJA SHAHAD AHMED.-(1). This direct appeal has been filed under section 42 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 against the order of a learned Single Judge of the High Court, dated 6-4-2005 passed in Reference Application No. 130-A of 2004 whereby the learned Judge of the High Court dismissed the reference application filed by the Commissioner Income Tax for non- prosecution.
2. Without dilating upon the merits of the case sufficient it to say that the appellant herein filed a reference application under section 133(10} of the Income Tax Ordinance, 2001 on 30-12-2004, which was dismissed on 6-4-2005. Hence this appeal.
3. It has been contended by Mr. Bostan Chaudhry* the learned counsel for the appellant that under law the reference application could only be heard by a Division Bench of the High Court. In this respect he relied upon section 133(1) of the Income Tax Ordinance, 2001 which is reproduced below:- "133. Reference to High Court.-(l).....................................................................
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(10) A reference to the High Court under this section shall be heard by a Bench of not less than two Judges of the High Court and, in respect of the reference, the provisions of section 98 of the Code of Civil Procedure, 1908 (V of 1908) shall apply, so far as may be, not withstanding anything contained in any other law for the time being enforced." Therefore, in the estimation of the learned counsel for the appellant, the learned Single Judge of the High Court could not hear the reference application and as such was not competent to dismiss the same for non-prosecution.
4. Mr. Azad Khan Tareen, the learned counsel for the respondents submitted that direct appeal does not lie to the Supreme Court against the impugned order of the High Court. Therefore, in his estimation the instant appeal is incompetent. He, however, stated that a proper forum for the appellant was to file an application for restoration of the reference application.
5. After considering the arguments of the learned counsel for the parties, we are of the considered view that a reference application under law can only be heard by a Division Bench of the High Court, therefore, a learned Single Judge of the High Court is not competent to hear and dispose of reference application. This has been our consistent view that the case in the Appellate Court must be decided on merits and the disposal of the lis pending should not ordinarily be adjudicated upon on technical grounds or through a short order like the one in hand. Be that as it may, this Court is vested with powers to pass any order in the interest of justice as has been held in many cases that "the Superior Courts are Judges of their own jurisdiction".
We, therefore, accept the appeal and remand the case to the High Court with the direction that it shall be heard by a Division Bench, as provided by law, and dispose of the same on merits.