S. AHMED SARWANA, J.- Exemption subject to all just exceptions.
2. In view of the orders to be passed hereinafter this Application has become infructuous and is dismissed as such.
3. The brief facts giving rise to these six Appeals, as available from the files, are that the Assistant Commissioner of Income Tax having received definite information that the Assessee owned a house bearing No. D-83, Block IV, Clifton, Karachi, issued a Notice to him under Section 17 of the Wealth Tax Act, 1963. In compliance of the Notice, the Assessee filed the Return of the Wealth Tax under protest explaining that on 24.3.1992, he had orally gifted the property to his wife Mst. Niaz Mahal in consideration of love and affection and Bilewaz Haq-e-Mahr and that he had subsequently confirmed the said oral gift in writing by a deed executed on 15.5.1992, a copy of which was enclosed with the Return. The explanation given by the Assessee was considered, not found satisfactory and accordingly rejected by the Assistant Commissioner, inter alia, giving the following reasons:- "(i) That statement of the assessee that house in question was gifted to wife is after-thought because house this was purchased on 25.1 1.1990 and gift deed was executed on 15.5.1992, has not been registered uptil now. The stamp papers issued are not in the name of the assessee. The property in question is still in the name of assessee and he has also given an advertisement for sale of the same vide advertisement in Daily Dawn dated 23.12.1999.
(ii) The house in question was purchased by assessee on 25.11.1990 but ownership of property has not been transferred in the name of the Douse uptil now.
(iii) The assessee has claimed the house as exempt from W. Tax being the house Self Occupied in his return of Wealth Tax while it was not declared in Wealth. Further on the other hand it has been stated to be gifted to wife in 1962.
(iv) There is no evidence to show that steps were taken to, gift effect to the oral gift in any manner whatsoever through the three essentials of a valid gift i.e. Offer, acceptance and the physical handing over of possession by divesting himself of any interest in the property after its gift by the donor."
The assessing Officer consequently, assessed the value of property to wealth tax in assessee's hands being assets concealed and liable to penalty. The Assessee filed an Appeal against the assessm ent before the Appellate Additional Commissioner of Wealth Tax who after discussion of the facts and the relevant law, by Order dated 16.6.1999, accepted the Appeal, set aside the order of the assistant Commissioner holding that the Department had no valid, legal and factual justification for initiating proceedings against the Assessee under Section 17 of the Wealth Tax Act, 1963. Being aggrieved by the Order of the Appellate Commissioner of Wealth Tax, the Commissioner of Income Tax filed six Appeals being WTA No. 251-KB to 256-KB of 1999-2000 (Assessm ent Years 1993-94 to 1998-99), before the Income Tax Appellate Tribunal, against the Order of the Commissioner of Wealth Tax. After hearing the parties, discussing the facts and relevant law, the Tribunal dismissed the six Appeals.
4. The Commissioner of Income Tax has filed these six Wealth Tax Appeals (WTA Nos. 892 to 897 of 2000) under Section 27(1) of the Wealth Tax Act, 1963, against the Order dated 22.6.2000 of the Income Tax Appellate Tribunal passed in six Appeals in respect of Assessment Years 1993- 94 to 1998-99, referring the following question of law for opinion by this Court: "Whether on the facts and in the circumstances of this case the learned Income Tax Appellate Tribunal was justified in holding that the assessee is entitled for exemption of Wealth Tax for any asset which was still in his possession and not transferred in accordance with section 4(1)(a)(iv) and 4(5) of the Wealth Tax Act, 1963?"
On going through the record we find that the learned Commissioner of Income Tax (Appeals) as well as the Income Tax Appellate Tribunal relying on the case of Abdul Sattar Dadbhoy v. Honorary Secretary, PECHS, Karachi, (PLD 1998 Karachi 291), held that under Muslim Personal Law a transfer of property by oral gift was valid and could not be challenged by any authority for want of registration and mutation Mr. Farooqui in support of the admission of the appeals urged that the transfer was not complete as neither the wife had got the property mutated in her name nor the assessee had taken any steps to crystallize the gift made by the husband to his wife. The law relating to oral gift by a Muslim is now well established, In the case of Mst. Umar Bibi v. Bashir Ahmed, (1977 SCMR 154 at 158), the Honourable Supreme Court of Pakistan observed as follows:- "The objection founded on section 123 of the Transfer of Property Act is also misconceived. Vide section 129 ibid the provisions of the Transfer of Property Act, gifts made under Muslim Law, are expressly from the operation of the Act. It is firmly established proposition that under Muslim Law a valid gift could be effected orally if the formalities prescribed by the Muslim Law are complied with even if the instrument of gift is not registered. See Muslim Law by Soksena, 3rd Edn. Pp. 368-369 and the precedent cases noticed at the foot of these pages. Among these formalities are the passing of the possession from the donor and the acceptance of the same by the donee. These are amply satisfied in the instant case."
This position was reiterated by the Supreme Court in the case of Maulvi Abdullah v. Abdu! Aziz, (1987 SCMR 1403). The same principle of law had been earlier enunciated by a Division Bench of this Court in the case of Mir Haji Ali Ahmed Khan Talpur v. Govt, of Sindh (PLD 1976 Karachi 316).
When asked to show how the above question arises from the order of the Tribunal, Mr. Farooqui was unable to give a satisfactory reply, In this respect it would be appropriate to reproduce the concluding paragraph of the learned Income Tax Appellate Tribunal's Order which reads as follows:- "Heard Mr. Khalid Siddiqui, learned representative for the department and Mr. M.Z. Ansari, learned representative for the respondent. The learned D.R. Has supported the view taken by the assessing officer but he is not able to rebut the findings given by the learned CIT (A). There is nothing on the record on the basis whereof the gift transaction can be rejected. We do not find any reason to interfere with the impugned finding of learned CIT(A)."
Now Section 27(1) of the Wealth Tax Act, 1963 pursuant to which these Appeals have been filed reads as follows:- "37. Appeal to High Court.- (1) An appeal shall lie to the High Court in respect of any question of law arising of of an order under section 24."
A plain reading of the Section clearly indicates that an Appeal shall lie to the High Court in respect of a question of law which arises of of the order passed by the Appellate Tribunal. A question or several questions of law can and do arise of of every order passed by the Appellate Tribunal but it is not every question of law arising from the Order which can be referred to High Court by way of an appeal. If the answer to the question of law is clear and has been settled by the superior Courts an appeal raising a question in respect thereof ought not to be filed in the High Court, In the case of Commissioner of Income-Tax vs. Pakistan Beverage Company Karachi, (1967) 15 Taxation 64, relating to a matter in respect of Sales Tax, this High Court observed as follows:- "If the answer to the question if patently clear and free from doubt the High Court is not bound to require the Tribunal to state the case and refer to this Court."
While discussing a question of law referred to the High Court by the Commissioner of Income Tax, under Section 66(1) of the Income Tax Act, 1922, the Honorable Supreme Court of Pakistan in the case of Lungla (Sylhet) Tea C Ltd., Sylhet vs. Commissioner of income Tax, Dacca Circle, Dacca ((1975) 31 Tax 64 (S.C) confirmed this principle in the following words:- "It may be pointed of that it is not every question of law that must be referred to the High Court.
There must be some substance in it."
In our view, these Appeals should not have been filed as the law relating to oral gifts by a Muslim husband to his wife is well-settled, It would not be of of place to indicate here that under Section 27(8) of the Wealth Tax Act, 1963, the costs of the Appeal are in the discretion of the Court and this Court in future shall not hesitate to enforce this provision against any party who files an appeal which is found to be not bona fide.
5. In the presence of such clear authoritative judgments of the superior Courts and undisputed facts of the case, it appears that the learned Commissioner of Income Tax, Zone-C, Karachi did not apply his mind to the facts and. Circumstances of the case before filing these Appeals thereby wasting the time of this Court which could have been more fruitfully utilized in dealing with other important cases requiring immediate attention of the Court, It is hoped that in future the learned CIT shall exercise his mind and discre tion prudently.
In view of the above discussion it is clear that no question of law arises for an opinion by this Court.
The Appeals are accordingly dismissed and the order of the Income Tax Appellate Tribunal dated 22.6.2000 is confirmed.
Office is directed to send a copy of this Order to the Chairman, Central Board of Revenue, Islamabad and the Regional Commissioner of Income Tax (Southern Region), New Income-Tax Building, Kamal Atatuik Road, Karachi, to ensure compliance in future.