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 circumstances of the case the validity of proceedings under Section 116 and the imposition of penalty under Section 111 of the Income Tax Ordinance, could be challenged when the assessm ent framed under section 62 read with section 65 were not appealed against being agreed Assessm ent?"
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 & Gons Karachi V. Commissioner of income Tax (1967 16-Tax 43) states that in absence of the assessee at whose instance the afore-said 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 afore-said questions have 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 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 aspect 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 to the above question was referred, we will decline to answer and dispose of the reference accordingly.