1. ' SALEEM AKHTAR, J.--The respondent derives her income from interest and dividends. In her return of income for the assessm ent year 1973-74 she declared an amount of Rs,1,25,401 representing casual income. The return was revised in March, 1976 in which the respondent showed this amount as income exempted from tax. The respondent maintained that as this amount was declared under M.L.R. 105, it is not an income and cannot be taxed under the Income Tax Act. The Income Tax Officer rejected the claim and added it to the income. The appeal filed by the respondent was dismissed by the Appellate Assistant Commissioner. The respondent filed a second appeal before the Tribunal which was allowed and it was observed that the receipts were not taxable and could not be included in the total income of the respondent. The applicant filed application under section 66 (1) of the Income Tax Act for referring 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?".
2. ' 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 granting 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 answered and no reference was required. The applicant has filed this application for permission to raise the aforesaid questions which may be considered and answered by this Court.
3. ' 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 shareholding 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 provisions of M.L.Rs, 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 receipt it could not be charged to tax. In this view of the matter question No,1 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.
4. The Department, therefore, can-not be allowed to raise this question also.
5. ' The application is dismissed.