THE COMMISSIONER OF INCOME TAX, COMPANIES ZONE, LAHORE vs Mst.

ORDER

' AHMAD SAEED AWAN, J.---The department had applied to the Tribunal for framing the question and referring the same to this Court. The Tribunal dismissed the department's reference on the point of limitation relying on (1988) 58 Tax 60. Hence, this application.

2. Without going into the merits of the case, it would be appropriate to dispose of the issue of limitation.

3. Learned counsel argued that at the stage of admitting the reference application this issue cannot be taken into consideration.

4. In section 3 of the Limitation Act, it has been expressly declared that whether the defence of limitation be pleaded or not, the Courts whether of first instance or of appeal are bound to give effect to the law. The section is couched in pre-emptory language and is addressed to the Court making it its duty to take notice of the Limitation Act and give effect to it even though the same is not referred to the pleadings. The above section 3 has to be obeyed in full. Therefore, an obligation is cast upon the Court to dismiss a suit, appeal or application if it is barred by limitation as held in case Muhammad Akram v. Aurangzeb and another (1989 CLC 1405 Lahore).

5. As contended by the learned counsel for the petitioner that the High Court is not justified in reopening the question of limitation of the reference before admitting a reference and the objection raised by the respondents, the contention of the learned counsel is devoid of merits. As held in case Hakeem Muhammad Boota and another v. Habib Ahmad and others (PLD 1985 SC 153) that the words of section 3 of the Limitation Act are mandatory in nature and that every suit or application instituted after the period of limitation shall, subject to the provisions of sections 4 to 25 of that Act, be dismissed although limitation has not been set up as a defence. The law, therefore, does not leave the matter of limitation to the pleadings of the parties as it imposes a duty in this regard upon the Court itself. The limitation being a matter of statute and the provisions being mandatory, cannot be waived and even if waived can be taken up by the party waiving it and by the Courts themselves.

6. In the light of above discussion, we are of the opinion that as the reference application moved before the learned Tribunal was time-barred, so has rightly been rejected by the learned Tribunal.

There is no reason to interfere in the order passed by the learned Tribunal. As the reference application is not maintainable; hence is dismissed in limine.