The Commissioner of Income Tax Zone-B, Lahore has proposed following question under section 136(2) of the Income Tax Ordinance, 1979 for our reply and decision.
"Whether on the facts and circumstances of the case, the learned Income Tax Appellate Tribunal was justified in holding that a partner's share income should be computed in the manner laid down by section 65(4) of the Income Tax Ordinance, 1979 for the purpose of calculating maximum tax liability as provided by clause (e) of the proviso to paragraph-A of Part-I of the Income Tax Ordinance, 1979."
2. The respondent is an individual and derives 50% share income from a registered firm namely Messrs Scientific Corporation, Lahore. His assessment for the year 1988-89 was completed at Rs.2,14,898 and a demand of Rs.38,040 was created. The said tax was calculated keeping in view C.B.R.'s Circular No. 13, dated 23-8-1982. On first appeal, however, it was directed that his share as a partner should be taken after excluding the super tax paid by the firm. The learned Tribunal upheld the first appellate order on 20-2-1992. Thereafter, the Department made an application under section 136(1) for reference of the aforesaid question which was declined by the Tribunal on the ground that the issue had already finally been resolved by the Hon'ble Supreme Court of Pakistan in Re: Commissioner of Income Tax, Central Zone, East Zone and West Zone, Karachi v. .Anweraly Haji Noor Muhammad and 4 others cited as 1992 SCM R 458 = 1992 PTD 347. On their refusal, the petitioner has made this direct application under section 136(2) of the Income Tax Ordinance, 1979.
3. After hearing the learned counsel for the parties, we entertain no doubt that this application did not lie in the first instance. The Tribunal had rightly refused to make a reference after the matter stood resolved by the aforesaid judgment. In that judgment, the Hon'ble Court found that the share of super tax payable by a registered firm could not be apportioned with reference to the share of the partner as computed under section 16(1)(b) of the Ordinance.
4. That being so, we will reject this application on the ground that the matter has already been resolved by the apex Court. .