NASIM SIKANDAR, J.---The Lahore Bench of the Income-tax Appellate Tribunal has framed the following questions for our consideration and reply: Assessm ent year 1983-84: (i) Whether on the facts and in the circumstance of the case the assessm ent for the year 1983-84 was rightly re-opened under section 65 of the Ordinance?
(ii) Whether the firm, being constituted by two partners only, continued to exist in the eye of law after the death of the managing partner, and whether after his death the proceedings against the firm without notice to the heirs of the deceased partners, were validly continued so as to culminate in an assessm ent valid in maw?
(iii) Whether the Income-tax Officer was right in law in revising the entire assessment in a proceeding under section 65 of the Ordinance or he should have confined himself only to the extent of the under assessm ent as escapement of income from tax, if any, in the case?
(iv) Whether there was material before the Tribunal, and whether that material could be used without confronting the assessee with it, for the purpose of adopting a flat G.P. Rate of 21% in the export sales and 15% in the supplies account?
Assessm ent year 1986-87: (i) Whether on the facts and in the circumstances of the case, the assessm ent on the income of period of less than 12 months (1-7-1985 to 23-5-1986) was chargeable to tax in the assessm ent year 1986-87?
(ii) Whether the assessm ent on the firm, in view of the death of a partner, without service of notice on all the legal heirs of the deceased partner, was valid in law? Or it should have been cancelled?
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 & Sons Karachi v. Commissioner of Income-tax (1967)
16 Tax 43 states that in absence of the assessee at whose instance the aforesaid questions 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 questions of law referred 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 its 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 . .