NASIM SIKANDAR, J.- The Lahore Bench of the Income Tax Appellate Tribunal has framed the following questions for our consideration and reply:-
(1) Whether in the facts and circumstances of this case the Tribunal was justified in law to hold that the Assistant Controller of Estate Duty held jurisdiction, for processing Estate Duty assessment in the assessee's case despite the fact that the Estate Duty Act stood repealed on 28.6.1979 vide section 3 of the Finance Ordinance, 1979 and thereafter the assessee's case was not specifically marked to the concerned Assessing Officer for processing assessment on 2.6.1983?
(2) Whether on the basis of material available on record the Tribunal was justified in fixing valuation of Sharif Market @ 1 5 times of the ALV?
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 questions were referred no opinion can be expressed by this Court.
3. In the said judgment their Lordship 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 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 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. Ispahan/' 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.