NASIM SIKANDAR, J.-The Lahore Bench of the Income Tax Appellate Tribunal has referred the following question for our consideration and reply:- "Whether on the facts and in the circumstances of the case, the Tribunal was fight in holding that the taxes payable can be termed as retained income for the purposes of levy of surcharge?
2. The Income Tax Officer calculated surcharge on the profits worked out after deducting the dividend distribution i.e. On the taxes worked out leviable on the amount retained by the Company.
The contention of the appellant that surcharge should be worked out on the basis of unretained income was not granted. The first appellate authority maintained the treatment meted out to the assessee and attempted to distinguish the case from the earlier view declared by the Tribunal in various cases. However, the Tribunal on further appeal directed that the surcharge should be charged in accordance with their earlier view.
3. A Karachi Bench of the Tribunal in re: CIT v. M/s. Facto Sugar Mills Ltd., Karachi, appears to have treated the issue for the first time, which was unsuccessfully challenged in reference by the revenue. The judgment of the High Court maintaining the view of the Tribunal was upheld by the Hon'ble Supreme Court of Pakistan while hearing a number of similar appeals in a case reported as re: Commissioner of income Tax v. M/s. Habib Sugar Mills Ltd., (PLD 1993 SC 257).
4. Learned counsel for the revenue agrees that the issue in hand having finally been settled by the Hon'ble Supreme Court, the answer to the question needs to be given in the affirmative.
5. Accordingly answered in affirmative.