THE COMMISSIONER OF INCOME-TAX Versus MESSRS SETHI BROTHERS

MANZOOR HUSSAIN SIAL, J. -- By this order we propose to dispose of T.R. Nos. 167 and 168 of 1973 as common question of law and facts are involved therein. The Commissioner of Income Tax, Rawalpindi Zone, Rawalpindi has filed these reference applications under sub-section (1) of section 66 of the Income Tax Act, 1922 relatable to assessment years 1966-67 and 1967-68 against order dated 30-1973 of the Income Tax Appellate Tribunal, Lahore (hereinafter called as 'Tribunal') Whereby the appeals filed by M/s Sethi Brothers, Rahwali District Gujranwals respondent herein, were allowed and the action initiated by the Income Tax Officer under section 34. of the Income Tax Act was held to be uncalled for. The question formulated for reference is as follows: "Whether on the facts and -in the circumstances of the case, the Tribunal was justified in setting aside the Income Tax Officer's order, making the assessment under section 34 of the Income Tax Act?"

2. At the very outset the learned counsel representing the respondent raised a preliminary objection that the Reference applications filed on 11-8-1973 under sub-section (1) of section 66 of the Income Tax Act, 1922 did not comply with the mandatory provisions of clause (a) of subsection (2) of the aforesaid section, as certified copies of the orders of the Tribunal dated 30-4-1973 were not filed with the reference applications. Learned counsel representing the petitioner on perusal of the copies of the impugned orders, was unable to controvert the submission made by learned counsel for the respondent. Section 66 of the Income Tax Act (XI of 1922) was amended by Finance Ordinance XIV of 1971'. The relevant amended subsection (2) thereof is reproduced hereunder:- (2) An application under sub-section (1) shall be in triplicate and shall be accompanied by the following documents, and where any such document is in any language other than English, also by a translation thereof in English namely: ----

(a) Certified copy, in triplicate, of the order of the Appellate Tribunal out of which the question of law has arisen;

(b) .... .... .... .... ....

(c) .... .... .... .... ....

It is clear that the relevant provision of law is mandatory, and identical to that contained under Order XLI Rule 1 CPC, which required memorandum of appeal to accompany copy of the decree appealed from. While interpreting that provision of law, it was held in Government of West Pakistan v. Niaz Muhammad PLD 1967 SC 271 by Supreme Court that where the memorandum of appeal is not accompanied by a copy of the decree, it is not validly presented and the Court cannot dispense with the same. The petitioner did not file certified copy, in triplicate, of the order of the Tribunal, nor applied for dispensation thereof,

3. No indulgence can therefore be shown in favour of the petitioner. These reference petitions were incompetently filed and are therefore dismissed with no order as to costs.

M.B.A./C-9/L Reference dismissed.