NASIM SIKANDAR, J.- The Lahore Bench of the Income Tax Appellate Tribunal has framed the following questions for our consideration and reply:-
(i) Whether the Demand Notice dated 20.6.1983 in consequence of the assessment order dated 21.6.1983 served on M.A. Malik FCA of the assessee, could be deemed to be a proper service on the assessee u/s. 85 of the Income Tax Ordinance, 1979?
(ii) Whether the limitation u/S. 130 of the Income Tax Ordinance, 1979 should be computed under clause (a) of sub-section (2) of the said section from 28.8.1983, the date on which the Demand Notice was served on the AR, or from 12.11.1983, the date on which it was intimated to the assessee by AR?
(iii) Whether the delay, if any, as requested by the assessee in the covering letter of the Appeal Memo, filed with the first Appellate authority in the facts and circumstances as shown therein should have been condoned or not?
(iv) Whether the appellate Tribunal has considered all the facts and circumstances of the case before upholding the order of the CIT (A) Zone-I, Lahore and in that manner the order of the Appellate Tribunal is just and equitable in law?
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 and Sons Karachi v. Commissioner of income Tax ((1967) 16 Tax 43) states that in absence of the assessee at whose instance the aforesaid question 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 questions 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. 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 have been referred, we will decline to answer and dispose of the reference according.