NASIM SIKANDAR, J. - The Lahore Bench of the Income Tax Appellate Tribunal has framed the following questions for our consideration and reply:-
(i) Whether under the facts and circumstances of this appeal, the appellant is entitled to deduction of Zakat from his total income for the purposes of payment of Income Tax?
(ii) Whether under the facts and circumstances of this case the ITO is legally justified in making disallowance of depreciation allowance under Third Schedule of the Income Tax Ordinance?
2. Learned counsel for the Revenue by relying upon a reported judgment of a Division Bench of the Karachi High Court in re: Dad a Bhai H. Mama and Sons, Karachi v. Commissioner of income Tax ((1967) 16 Tax 43) states that an 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 the 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.