' NASIM SIKANDAR, J.---The Lahore Bench of the Income Tax Appellate Tribunal has framed the following questions for our consideration and reply:--
(i) Whether on the facts and circumstances of the case Income Tax Appellate Tribunal was justified in holding that applicant's case was not a pending matter for purposes of application of para. (5) of Circular and section 3(c) of the Income Tax Act, 1922?
(ii) Whether on the facts and circumstances of the case Income Tax Appellate Tribunal was justified in holding that declaration made by partners of the firm under section 3(c) did not reflect income earned by them from the business of the firm without alleging any other source of income or business?
(iii) If the answer to the above two questions is in the negative, whether the Income Tax Appellate Tribunal was justified in disallowing the benefit of declaration made by the partner under section 3(c) to the applicant firm?
2. Learned counsel for the Revenue by relying upon a reported judgment of a Division Bench of Karachi High Court in re: Dada Bahai 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 questions were 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 Imome 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 questions have been referred, we will decline to answer and dispose of the reference accordingly.