1. ' SALEEM AKHTAR, J.-The respondent is an individual who was drawing income from various sources including dividends and interest. During assessment year 1973-74 the respondent declared as casual income certain foreign remittances under M.L.Rs,104 and 105. These amounts were repatriated after t 1st March, 1972. The Income Tax Officer, therefore, included them in the total come of the respondent as according to him the exemption could be granted if he remittances were made into Pakistan on or before 31st March, 1972. The appellate Assistant Commissioner also upheld the said order. The respondent challenged that order before the Tribunal and it was held that the said amount was not chargeable to tax in Pakistan as the repatriated amount did not have the character of income liable to be assessed under the Income Tax Act. The Tribunal discussed the facts of the case minutely as under.
2. "We, therefore, think that the receipts not being taxable in character could not be included in the total income of the assessee and so we delete the amount included in the assessee's income."
3. ' The department filed application under section 66 (1) raising the folloiwng question which was dismissed:
(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?
4. ' It has now filed application under section 66 (2).
5. It is pertinent to note that the finding of fact that the repatriated amount was not in the nature of income has not been challenged by the Department. It seems clear that only that amount which was repatriated as an income, but not as a capital will be charged to tax. Similar question came up for consideration in Commissioner of Income Tax v. Mst. Mariam Bai Ahmed, I.T.C. 73/79, Commissioner of Income Tax v. Mustafa Gokal I.T.0 21/79, Commissioner of Income Tax v. Mst Khatoon Bai I T C 74/79 where the finding was given that the amount repatriated and declared under M L R 104/105 not being revenue but capital remittance was not liable to tax. We have taken this view in all the a fore stated cases and do not find any ground to allow this application.
6. ' The application is therefore dismissed.