NASIM SIKANDAR, J.- The Lahore Bench of the Income Tax Appellate Tribunal has framed the following question for our consideration and reply:- Whether on the facts and in the circumstances of the case the Tribunal was right in holding that the order by the first appellate authority reject the appeal in limine on the ground that it was barred by time was an order under Section 130(3) of the Ordinance and not the order under Section 132 of which appeal could be filed before the Tribunal.
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 was 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 question has been referred to us. In the view of their Lordships the obligation of the High Court to decide the question 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 question 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 question referred to it if the party, at whose instance the question 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 question has been referred, we will decline to answer and dispose of the reference accordingly.