NASIM SIKANDAR, J.- The Lahore Bench of the Income Tax Appellate Tribunal has framed the following questions for our consideration and reply:-
(i) Whether on facts and in the Circumstances of the case the Tribunal correctly appreciated the accumulative avoidance of the surrounding circumstances to hold that the assessee "intended to (and did) make a profit in an attempt to undertake a venture in the nature of business"?
(ii) Whether on the facts and in the circumstances of the case the Tribunal rightly adjudged that the isolated transaction of the sale of plots in one year had the character of adventure in the nature of trade having a motive from the very beginning to earn profit?
(iii) Whether on the facts and in the circumstances of the case the Tribunal rightly adjudged that gain on sales of plot declared by the assessee did not represent receipt of a casual and non- recurring nature entitled to exemption as per clause 65 of the Second Schedule to the Income Tax Ordinance, 1979?
2. Learned counsel for the revenue by relying upon a reported judgment of a Division Bench of the Karachi High Court in re: Dada Bhai H. Mama and Sons Karachi v. Commissioner of income Tax (1967) 16-Tax 43 states that in absence of the assessee at whose instance the aforesaid question were referred, no opinion can be expressed by this Court.
3. In the said judgment their Lordships interpreted the provisions of Section 66(5) of the Income Tax Act, 1922 which are similar to Section 136 of the Income Tax Ordinance under which the aforesaid questions have been referred to us. In the view of their Lordships the obligation of the High Court to decide the question of law inferred to it was contingent upon the hearing of the case. Further that the hearing of the case could not be made unless the party at whose instance the questions had been referred to the Court was present and had argued is case. Therefore, their Lordships found that they were not bound to answer the questions referred to it if the party at whose instance the questions had been referred had remained absent. Reference in that respect was made to a decision of the Calcutta High Court in re: M. M. Ispahani Ltd. V. Commissioner of Excess Profits Tax West Bengal (1955) 27 ITR, 188).
4. Being in respectful agreement with their lordships in absence of the assessee at whose instance the above questions have been referred, we will decline to answer and dispose of the reference accordingly.