NASIM SIKANDAR, J.- The Islamabad Bench of the Income Tax Appellate Tribunal has framed the following question for our consideration and reply:--
(1) Whether on the facts and in the circumstances of the case, the Tribunal erred in law in holding that the expenditure incurred on repairs of furnace was of capital nature?
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 & Sons Karachi v. Commissioner of income Tax ((1967)
16-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. 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 if 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.