Present
Mr.
Justice Faisal Arab
Mr. Justice Aqeel Ahmed Abbasi.
Date
of hearing : 01.12.2011
Date
of judgment : 01.12.2011
Appellant : Mr. Aziz-ur-Rehman C/O MSD (Pvt) Ltd., Karachi.
Versus
Respondent The Commissioner of Income Tax, Zone ‘F’ Karachi through Mr.Jawaid Farooqi, Advocate
J U D G M E N T
Aqeel Ahmed Abbasi, J. Instant Reference Application arising from I.T.A. No.344/KB of 2000-2001 (Assessment Year 1997-1998) has been referred to this Court for its opinion at the instance of applicant by the Income Tax Appellate Tribunal, wherein following questions of law are said to have been arisen from the order of the Tribunal.
“4. Whether in the facts and circumstances of the case the Tribunal was justified in dismissing the arguments of the A.R. of the applicant that there cannot be any gain on the sale of shares when the date of applicants' becoming owner of the shares and the date of the sale of those shares is the same as the applicant became the owner of these shares on exercise of stock option and after this exercise the shares were sold on that very date.
5. Whether in the facts and circumstances of the case the learned Tribunal was justified in not accepting the claim of the applicant that since profit earned on the sale of stock share came to Pakistan in shape of foreign exchange and the applicant opened dollar account in a commercial bank it was exempt under section 4 & 5 of Protection of Economic Reforms Act, 1992 and clause 6A of part IV of second Schedule of the Income Tax Ordinance, 1979.”
2. The matter was fixed for regular hearing on 11.11.2010 when no one appeared on behalf of the applicant. Thereafter, the matter was adjourned on several dates with the directions to issue intimation notice to the applicant. Several notices were issued, however, no one attended on behalf of the applicant. On 10.11.2011 also, when the matter was taken-up for hearing no one was in attendance on behalf of the applicant. However, Mr.Jawaid Farooqi, learned counsel for the respondent submitted that the questions of law involved in the instant reference application have already been decided by this Court in the case of Mst. Haleema Pervaiz v. Commissioner of Income Tax, Zone ‘F’, Karachi (2009) 99 Tax 128 (H.C. Karachi). Since no one was in attendance on behalf of the applicant, again notices were directed to be issued to the applicant and the matter was adjourned for today. Today, also no one has shown appearance on behalf of the applicant nor any intimation received inspite of issuance of notice.
3. Under the circumstances, we are left with no option but to examine the issues involved in the instance case on the basis of available record and the case-law relied upon by the learned counsel for the respondent. Mr. Jawaid Farooqi, learned counsel for the respondent has submitted that the questions proposed in the instant reference application have already been decided in favour of the respondent department by a Division Bench of this Court in the above cited judgment, hence instant reference application may also be disposed of in the same terms. In the case of Mst. Haleema Pervaiz v. Commissioner of Income Tax, Zone ‘F’, Karachi (2009) 99 Tax 128 (H.C. Karachi) following questions were referred for opinion of the Court:
“(4) Whether in the facts and circumstances of the case the Tribunal was justified in dismissing the arguments of the A.R. of the applicant that there cannot be any gain on the sale of shares when the date of applicant’s becoming owner of the shares at the date of the sale of those shares is the same as the applicant became the owner of these shares on exercise of stock option and after this exercise the shares were sold on that very date.
(5) Whether in the facts and circumstances of the case the Tribunal was justified in not accepting the claim of the applicant that since profit earned on the sale of stock share came to Pakistan in shape of foreign exchange and the applicant opened dollar account in a commercial bank it was exempt u/ss 4 and 5 of Protection of Economic Reforms Act, 1992 and clause (6A) of part IV of Second Schedule of the Income Tax Ordinance, 1979.”
5. The Division Bench of this Court after hearing both the parties has decided the reference in the following terms:
“14. On the basis of the above discussion, we are of the considered opinion
that the conclusion reach by the Tribunal is unexceptionable and no
interference is called for by this Court. In view of the above opinion, we
answer the questions referred for our opinion in affirmative in favour of the
respondents and against the applicants. As a consequence of our above reply
these Income Tax Reference Applications are dismissed.”
6. In view of hereinabove, we are of the view that the questions of law proposed through instant reference have already been dealt and decided by a Division Bench of this Court in the above cited judgment. Accordingly, we would answer the questions referred for our opinion in affirmative in favour of the respondent and against the applicant. Reference Application is hereby dismissed.
JUDGE
JUDGE