THE COMMISSIONER OF INCOME-TAX, RAWALPINDI ZONE, RAWALPINDI vs MIAN

' MAHBOOB AHMAD, J.--By this judgment we propose to deal with Tax References Nos. 13, 77, 78 and 70 of 1971 as common questions of law and facts are involved in all the four of them. The first three of the abovementioned references have been filed by the Commissioner Income Tax, Rawalpindi Zone under subsection (1) of Section 66 of the Income Tax Act, 1922 whilst the fourth has been instituted by Commissioner of Income Tax Lahore Zone, Lahore under the same provision. All the References relate to assessm ent year 1962-63 and arise out of similar orders dated 2-3-1971 passed by the various Benches of Income Tax Appellate Tribunal (hereinafter referred to as Tribunal) whereby the appeals of the respective respondents were accepted. The common question for decision before the Tribunal was whether redemption value of the preference shares is a dividend income within the meaning of Section 2 (6-A) (d) of the Income Tax Act and the same is liable to tax in the hands of the assessee. The Tribunal held that in view of their earlier decisions on the same point that although such a receipt could come within the fictional definition of dividend yet the same is not liable to assessment in the hands of the assessee the amounts involved in each case should be excluded from the taxable income of the assessee.

2. Aggrieved of the aforementioned orders of the Tribunal the Commissioners of. Income Tax have filed the present Tax References under Section 66 (1) of the Income Tax Act, 1922 with a request that the two questions of law as detailed below arise out of the orders of the Tribunal and the same be framed and answered: "(1) Whether on the facts and in the circumstances of the case the Tribunal was right in holding that the redemption value of shares should be taxed in the hands of company and not the individual shareholders?

(2) Whether on the facts and in the circumstances of the case the Tribunal was right in interpreting section 2 (6 A) (d) of the Income Tax Act in the manner indicated above?"

' In may be observed here that in Tax Reference No,70/71 the question framed is only one but the said question is a consolidated question incorporating practically the two questions quoted above.

3. Learned counsel for the respondents has raised a preliminary objection to the maintainability and competence of the Tax References under-consideration. He has submitted that with the Reference Applications no certified copy of the order of the Tribunal or for that matter, of the other orders has been filed with the application which is a mandatory requirement by virtue of the provisions contained in Section 66 (2) of the Income Tax Act, 1922 as amended by the Finance Ordinance No,XIV of 1971. The learned counsel relied on judgments of this Court passed in T.R.

No,207/72 and T.R.No, 167/73 and on a judgment of the Peshawar High Court in T.R.No,165/72 in support of his above contention. He urged that the Tax References are liable to be dismissed on the above preliminary objection alone. It was also urged by the learned counsel for the respondents that the decisions cited by him have not been questioned by the Department further and have attained finality.

4. Learned counsel appearing for the petitioner when confronted with the above position could urge nothing to controvert the contention raised on behalf of the respondent.

5. In view of the foregoing position all the four Tax References under consideration having been incompetently instituted on account of non-filing of certified copies of the orders of the Tribunal and not only that no application for dispensing with the filing of the said certified copies having been made the same are not maintainable and are accordingly dismissed. However, the parties are left to bear their own costs. .