1. ' AMIN AHMAD, C. J.---This is a reference under subsection (2) of Section 66 of the Income-tax Act as adapted in Pakistan, made by the Commissioner of Income-tax under the direction of this Court.
2. The points that have been formulated for our consideration are as follows: "(i) Whether the circumstances of the case admit of the ordinary market rate as found at Rs,218 per bullock as an acceptable standard under the law or under section 13 for the ascertainment of the purchase price of the bullocks, and which the acceptance of the ordinary market rate overlooks the material circumstances having a bearing on the question of cost rate of the bullocks and heifers supplied;
(ii) Whether the average selling rate adopted by the Income Tax Officer at Rs,263 violates the principle of natural justice increasing the admitted receipt of Rs,11,84,540 by Rs,67,300 leading to an absurd result and whether the adoption of that rate in preference to the average rate of Rs,248 per animal leads approximately to an estimate of true income sustainable under the law; and
(iii) Whether the rate of Rs,187 the rate adopted per dead animal, is a fictitious figure based on no evidence and unaccompanied by any reason is sustainable in law."
3. ' The assessm ent relates to the year 1946-47 on account of the income made by the assessee during the account year 1945, and the business in respect of which the income has been assessed is the business of supply of bullocks and heifers during the said year to the Commonwealth Relations Department of the Government of India.
4. ' From the letter of reference it appears that the Tribunal has conceded so far as the point No,3 is concerned. As to points Nos. 1 and 2 their comments do not seem to justify their finding against which the reference has been made to this Court but they have given reasons as to how the Appellate Assistant Commissioner came to a certain finding by relying on average prices.
5. ' At the time assessee moved this Court for directing the Tribunal to make the present reference, in his application he formulated four points as points of law which are: "(1) Whether under the facts and circumstances of the case it was legal to supply the provisions of section 13.
(2) Whether in view of the facts on record and in the circumstances of the case the Tribunal was justified in holding that the gross profit rate for bullocks and heifers as has been applied is reasonable and fair, the contract price of one being Rs,263 and the other 137 per animal;
(3) Whether the cost rate of the dead animals as has been determined is compatible with the findings on record and
(4) Whether an order which had the effect of increasing the admitted and accepted receipts of Rs,11,85,722 by Rs,67,300 maintainable in law and whether such increase could be effected without notice."
6. ' It also appears from the order of this Court passed on the 7th of December, 1955, that the learned counsel, who appears for the assessee before us and who also appeared then, pressed the above points Nos. 1, 2 and 3 out of the abovementioned four points and that this Court accepted most of his contentions and formulated the points as they stand now. After hearing the learned Advocates and going through the records our answer as to point No, 1 is that section 13 of the Income Tax Act has been correctly applied by the Tribunal, and so far as points Nos.2 and 3 are concerned our answer is that section 13 has not been correctly applied.
7. ' Before we part with this case we cannot help observing that although there is no legal bar for a person who hears an appeal as an Appellate Assistant Commissioner to hear, as a member of the Tribunal an appeal against his own decision and also the decision of another authority after his decision is set aside and subsequently confirmed by another authority, as far as possible this should be avoided for when a person passes an adverse order he should not, if he can help it sit in judgment when it comes to a higher Appellate Tribunal against his own order and also against an adverse order subsequently passed by another person though his previous order has been set aside. From the records we notice that Mr. M. Ameen heard this matter once as an Appellate Assistant Commissioner and upheld the estimate of income arrived at by the Income Tax Officer though he did give some relief to the assessee; that there was an appeal against his decision before the Tribunal which set aside the order of Mr. M. Ameen and remanded the case for a fresh consideration by the Assistant Appellate Commissioner ; that after the remand when the appeal was disposed of against by another Assistant Appellate Commissioner there was an appeal to the Tribunal again and the Tribunal presided over by the President and Mr. M. Ameen dismissed the appeal on the 17th of March, 1955, and that again when an application for reference to this Court was made, it was rejected by the Tribunal consisting of the President and Mr. M. Ameen. From what we have said, we do not mean that Mr. M. Ameen as a Member of the Tribunal had any basis or did anything against any party and perhaps, what he has decided might well have been the decision of any other Member of the Tribunal and in case of any other party. But we must point out that not only a correct decision should be given by the Appellate authority but it is also necessary that party or parties concerned C must also feel that the decision given by the appellate Tribunal is one by such an independent body as the personnel of which, directly or indirectly, has noting to do with the decision of the order appealed from at any stage while the case was pending before the lower appellate authority.
8. ' In the result, this reference is allowed to the extent indicated above. We, however, do not award any cost.