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 learned Income Tax Appellate Tribunal was justified in Confirming to order of the learned Commissioner of Income-tax (appeals) in respect of interest received on Defence Savings Certificates and Khas Deposit Certificates which were included in the annual accounts submitted to the collector of Insurance under the Insurance Act, 1938, and were claimed as exempt under Clauses 72 and 73 of the Second Schedule of the Income Tax Ordinance, 1979, and treated the interest on Defence Savings Certificate and Khas Deposit Certificate as chargeable to tax?
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)
10. 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 is 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.