1. ' SALEEM AKHTAR, J.-- The respondent filed returns for the Assessment Years 1974-75, 1975-76-77 and 1977-78 claiming deduction of Wealth Tax paid by him from the total income. The Income-tax Officer rejected this claim. The appeal filed before the Appellate Assistant Commissioner was allowed. The Department filed appeal before the Tribunal which was dismissed by order dated 28- 2-1981 and served on the respondent on 25-3-1981. On 26-6-1981 the Department filed application under section 136(1) of the Income-tax Ordinance for referring the questions to the High Court.
2. ' The Tribunal by order dated 17-4-1986 observed that the application was to be governed by section 66(1) of the Income-Tax, Ordinance and dismissed it as time-barred. The Department then filed the present application under section 136(2) of the Income Tax Ordinance praying that the following questions arise from the order of the Tribunal which may be decided by the High Court:-
(a) "Whether on the facts and the circumstances of the case the Tribunal was justified in holding the application of the applicant 'as barred by time
(b) Whether on the facts and in the circumstances of the case the Wealth-tax liability is an allowable expense under section 10 or section 12 of the Income Tax Act, 1922."
3. ' We have noted that the assessm ent order passed by the Income Tax Officer does not bear any date. However, the appellate Assistant Commissioner passed the Order on 26-1-1980. By that time the Income Tax Ordinance had been promulgated, therefore, all procedures relining to appeal and reference were to be governed by the provisions of the Ordinance and not the income Tax Act as held by the Tribunal. However, this does not make any difference as even under section 136(1) of the Ordinance the Department's application was barred by time.
4. Under section 136(1) application for referring question of law to the High Court should be filed within 90 days from the date of service of order of the Tribunal passed under section 135 of the Ordinance.
5. As stated above, the Tribunal dismissed the appeal by order dated 28-1-1981 which was served on 25-3-1981. Thereafter, the application under section 136(1) should has been filed within 90 days from 25-3-1981 i.e, upto 23-6-1981. The application was filed on 26-6-1981 which was clearly barred by time.
6. ' Section 136(2) provides that where the Tribunal refuse to state the case on the ground that no question of law arises the assessee or the Commissioner may apply to the High Court to frame and decide the question of law. The High Court may frame such question and decide it if it is satisfied that the order of the Tribunal is not correct. Therefore, where the High Court comes to the conclusion that the order of the Tribunal is correct then application under section 136(2) can be rejected. In the present case although the Tribunal has applied section 66(1) of the Income Tax Act, the order is substantially correct even if section 136(1) would have been applied. No useful purpose will be served by framing the question as on the face of it the application filed before the Tribunal was barred by time.
7. ' We, therefore, reject the application. .