NASIM SIKANDAR, J.-In this reference application under section 133(4) of the Income Tax Ordinance, 2001 the revenue through Commissioner of Income Tax/Wealth Tax Multan Zone, Multan claims that following questions of' law arise out of vthe order of the Tribunal, dated 25-7-2002:---

(1) "Whether the learned appellate authorities were justified to entertain the evidence produced by the assessee regarding filing of revised return without perusing/examining the record of the office of the Commissioner of Income Tax".

(2) "Whether evidence of an official regarding receipt of a return was entertainable when he was not authorized to do so".

(3) "Whether the appellate authority were justified to entertain a piece of evidence which was not bona fide but a result of collusive arrangement with an unscrupulous official".

2. Earlier a Division Bench of the Tribunal declined reference of these questions to this Court on 15-2-2003 on the ground that the evidence of alleged collusive arrangement between the assessce and an official of the revenue could not give arise to a question of law.

3. As per statement of the case the respondent-assessec is an individual. For the relevant assessment year 1998-99 he filed return of his income at Rs.2,52,000 from salary as well as clinical practice as a Doctor of medicine, The Assessing Officer refused to allow the claim of immunity on the ground that under the scheme the assessee was required to pay enhanced lax by 20% as compared with the tax paid in the immediate preceding year viz 1997-98. It was noted that during the year under review the assessec could avail immunity only by paying tax at Rs.22,560 while he had paid total tax for the year, 1998-99 at Rs.20,800. On usual proceedings in which allegedly the assessee failed to participate on 27-6-2001 the Assessing Officer proceeded to frame assessment at total income for the year at Rs.8,86,540.

5(sic). Before the first appellate authority the assessee pleaded that before the closing date he had revised his return disclosing an income of Rs.2,63,800 and had also paid tax at Rs.24,827. The return and challan was alleged to have been submitted at CIT Office Multan. The finding of the Assessing Officer that no such return was transferred from CIT Office, Multan to the local District Office at Khanewal was controverted. Learned first appellate authority on going through the acknowledgment slip filed by the assessee agreed that return had actually been revised and the tax deposited having registered an increase of 20% compared with the immediate preceding year the assessee was entitled to immunity. A Division Bench of the Tribunal on 25-7-2002 maintained the order of the first appellate authority inter alia on the ground that the acknowledgment slip, dated 31-10-1999 and the filing of revised return was supported from the statement of the receiving official namely Sajjad Hussain, Supervisor, who on oath confirmed before CIT(A) as to receipt of the return as per acknowledgment relied upon by the assessee. Thereafter, as noted above, the Bench refused to refer the aforesaid three questions for our opinion and answer.

6. After hearing the learned counsel for the revenue we will decline to entertain the aforesaid questions. The claim of the revenue that CIT(A) was not competent to entertain evidence produced by the assessee regarding filing of revised return is not a correct statement of. law. Subsection (5) of section 128 of the Income Tax Ordinance, 2001 certainly empowers the Commissioner (Appeals) to entertain any documentary material or evidence although such admission is subject to A his satisfaction that the appellant was prevented by sufficient cause from producing such material or evidence before the Commissioner. The revenue/present petitioner has not questioned the satisfaction of the CIT(A) recorded in his order, dated 11-8-2001 when he summoned and examined on oath Sajjad Hussain, Supervisor, Circle, Multan. The assessment order, dated 27-6-2001 recorded by the Assessing Officer being ex parte there does not appear any illegality on the part of the CIT(A) to entertain the evidence. All the more so when the Assessing Officer had summarily rejected the plea of filing of revised return on the A only ground that the revised return had not been forwarded to his Khanewal Office by the Multan Office where it was purported to have been submitted. Learned CIT(A) in that regard rightly observed that the assessee could not be penalized for a default on the part of the receiving Office to forward the revised return when its acknowledgment had duly been submitted before the Assessing Officer.

7. There is another reason for our refusal to entertain and answer the aforesaid questions. In a recent opinion expressed on 14-11-2000 in C.T.R. No. 20/91 re: CIT v. Messrs Imminan International, Lahore we have discussed the issue at length in the light of the judgment of the Supreme Court of Pakistan in re: The Lungla (Sylhet), Tea Co. Ltd. v. Commissioner of Income Tax Dacca Circle Dacca, (1970 SCMR 372). The Hon'ble apex Court in that case held that every question of' law need not be referred to the High Court and that only a question having some B substance needed to be so referred. A portion of our opinion reads as under:

"It has been our experience that the revenue in case of an adverse decision invariably goes for an application for reference to this Court and is generally well obliged by the Tribunal. The revenue, the assessees as well as the Tribunal need to understand the precise nature of the jurisdiction of this Court as also the purpose for which it has been conferred. Without an iota of doubt this jurisdiction is advisory in nature and is required to be invoked only when the issues raised before and decided by the Tribunal were of substantial nature and of general application to a sizeable class of assessees. The nature of jurisdiction of this Court is clearly distinguishable from its appellate or the revisional jurisdiction. The most important difference which needs to be noted is that during the pendency of a reference the appeal before' the Tribunal is deemed pending and in case the view adopted by the Tribunal is varied it is again listed before them and then decided in the light of the opinion expressed by this Court. The purpose of reference is not to get a decision for or against a party before the Tribunal. It is only the resolution of a problematic or debatable legal question. In rc: CIT v. Basanta Kumar Agarwalla (1983) 140 ITR 418, their Lordships expressed the view that "a point or law" could not be equated with the expression "question or law" and that the question D referred must be a disputed or disputable question of law. Further that the object of a reference was to get a decision from the High Court on a problematic or debatable question and not an obvious or simple point of law. Accordingly, the reply to a question referred to this Court, affirmative or negative, should normally settle a pattern of guidance both for the revenue as well as the assessees besides the Tribunal who had sought the advice in the first instance. Therefore, the practice on the part of the revenue or the assessees which at times is aided by the Tribunal to treat this Court as a. Court of Appeal needs to be disapproved. Factual controversies should not be allowed to be converted into legal issues only by dint of draftsmanship or employment of legal language on a style which is usual to the framing of such questions. In case the Tribunal is not certain if the question framed raises a substantial legal issue, it must refuse to make a reference as in that case the assessee or the revenue will have to approach this Court under subsection (2) of section 136 and satisfy, before admission, that the question raised/framed is of substance. Therefore, unless a question framed by the Tribunal at the instance of an assessee or the revenue under section 136(1) or brought directly before this Court under section 136(2) of the late Income Tax Ordinance, E 1979 fulrils the aforesaid standard of general interest, application and relevancy to the over all assessment proceedings, it shall be deemed to be a question of fact. The principle that an advice should never be given unless asked for also has another angle. With regard to reference proceedings under the Ordinance it means that an advice should not be sought unless it is absolutely necessary for the guidance of the parties and for smooth and effective flowing of the assessment stream."

"In the present case the eligibility of an individual assessee in a particular year to avail immunity from detailed scrutiny can F hardly be said to be a question having a substance. The reply to the aforesaid questions will not even be available to the assessee for his future assessments. Having a particular background of facts it will not be of any importance for the revenue or other assessees either. The principle settled in replying the questions will not be of general application even to answer the parameters or the self-assessment scheme for the year."

8. The above questions as framed in our view are neither of law G nor have raised a substantial legal controversy between the parties.

Therefore, as observed above, we will decline to entertain and answer them.

9. Answer declined.

Reference not answered.