COMMISSIONER OF INCOME-TAX COMPANIES NO. 1, KARACHI vs M/s. HASSAN

ORDER

' SALEEM AKHTAR, J.---The petitioner seeks leave to appeal against the order of the learned Judges of the High Court whereby while holding that under section 136(7) of the Income Tax Ordinance, 1979 (hereinafter referred to as the Ordinance), the High Court has the power to grant stay. With the consent of the parties and without prejudice to the contentions of the assessee, tax was ordered to be paid in instalments.

2. The respondent aggrieved by the assessment made by the Assessing Officer filed appeal before the Commissioner of Income Tax (Appeals I), which was dismissed. The respondent then filed an appeal before the Income Tax Appellate Tribunal, which confirmed the order of the Commissioner of Income Tax (Appeals). The respondent then filed an application under section 136(1) of the Ordinance before the Income Tax Appellate Tribunal for referring question of law proposed therein to the High Court. This application was rejected by the Tribunal. The respondent then filed reference application under section 136(2) of the Ordinance in the High Court praying that the question of law proposed in the application which arises out of the Tribunal's order be heard and decided. Before the reference application could be fixed for regular hearing the respondent filed an application under sections 93 and 136(7) of the Ordinance read with rule 162 of the Income Tax Rules, 1982 seeking a stay against recovery. The learned Judges held that section 136(7) of the Ordinance confers power of stay on the High Court, but the application was disposed of with the consent of the parties as stated above.

3. Mr. Awan, learned counsel for the petitioner contended that important question of law arises from the order of the High Court and therefore leave may be granted. From the impugned order it is clear that the stay application has been disposed of and with the consent of the parties respondent has been allowed to pay tax in instalments at the rate of Rs,2,00,000 per month towards the disputed demand made by the Department. The main application for hearing of reference is yet to be fixed for regular hearing. In these circumstances, the question raised with regard to the power of the High Court to grant stay has become completely academic. In references, questions of academic nature are not to be considered particularly if any reference is sought merely for the purpose of deciding it on academic plane without having any bearing on the rights of the parties. Although the application for stay is independent of questions raised in the reference application, yet from the nature of the order it has become completely academic and of little substance to the parties. On reference being made or questions being framed by the Court under section 136(2) of the Ordinance the Court is not bound to answer them. In cases where the questions do not affect the rights and liabilities of any party or are irrelevant and unnecessary, the Court may refuse to answer them. General or abstract questions for seeking guidance, which is purely academic may not be framed or allowed to be raised and if so framed or raised, the Court may refuse to answer them. ##TE#Reference can be made to Sri Rajendra Narayan v.

Commissioner of Income Tax (8 ITR 495) where the Privy Council following its well-settled practice, refused to answer question which was purely academic. The same view was followed in Commissioner of Income Tax v. Smt. Anusuya Deve (68 ITR 750 (SC) ) and Commissioner, income Tax v. Calcutta Discount Ltd. (91 ITR 8 (SC) ).

' Leave is refused.