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Civil Appeals Nos. K‑67 of 197;1; K‑72 and 7:i of 1972 and K‑155 to K‑196 of 1980, decided on 23rd October, 1984.

(On appeal from the judgment order of the High Court of Sind and Baluchistan, Karachi, dated 24‑10‑1972 passed in Constitutional Petition No. 415 of 1964).

‑‑Art. 185(3)‑‑Income‑tax Act (XI of 1922), S. 10 (2) (iv)‑‑Leave granted to consider whether initial and additional depreciation could be allowed under S. 10(2)(iv) of Act and r.9 of Income‑tax Rules in case of a ship registered outside Pakistan and not installed in Pakistan and which did not ply in Pakistan for first time.

‑‑S. 10(2)(iv) read with Income‑tax Rules, 1922, rr. 9 & 40‑‑Initial and additional depreciation‑‑Assessee a new resident shipping Company‑‑Ship registered outside Pakistan and not installed or plied in Pakistan for first time‑‑Held: In case of non‑resident shipping Company whose ships ply throughout world and whose income was being assessed on basis of world income under r. 33 (now r. 40) of Income‑tax Rules, initial and additional depreciation would be available while assessing income of such non‑resident assessee‑Company prescribed method of computation.

‑‑‑Practice and procedure‑‑New point‑‑Question of law not urged before High Court‑‑Supreme Court declined to consider in appeal a question of law on which leave was not granted and which was not urged before High Court and Court did not have benefit of view of High Court on that point.

Nasarullah Awan, Advocate Supreme Court for Appellants (in Civil Appeals Nos. K‑45/71, 155/80, 172/80, 181/80, 184/80 to 186/80, 188/80 to 192/80).

Mrs. Rashida Patel, Advocate Supreme Court/Advocate‑on‑Record for Appellants (in Civil Appeals Nos. K‑156/80 to 159/80, K‑161/80 to 163/80, K‑173/80 to K‑177/80, K‑179/80, 180/80, K‑187/80, K‑194/80, K‑72/72, K‑73/72, K‑67/73).

Shaikh Haider, Advocate Supreme Court for Appellants. (in Civil Appeals Nos. K.‑164/80 to K‑171/80, K‑178/80, K‑182‑183/80, K‑193/80 and K‑196/80)

M. Shabbir Ghaurh, Advocate‑on‑Record for Appellants (in all above cases except Civil Appeals Nos. K‑72‑73/72 and K‑67/73).

Ali Athar, Advocate Supreme Court instructed by Ismail Tejani, Advocate‑on‑Record for Respondents (in Civil Appeal No. K‑67/73).

A.A. Shareef, Advocate Supreme Court instructed by Ismail Tejani, Advocate‑on‑Record for Respondents (in Civil Appeals Nos.

K‑72‑73/72, K‑161 to K‑163/80, K‑172 to 173/80, K‑177 to 186/80 and K‑194/80).

G.M. Qureshi, Advocate Supreme Court instructed by Rashid Akhtar Qureshi, Advocate‑on‑Record for Respondents (in Civil Appeals Nos. K‑158/80 and 159/80).

Noor Muhammad, Advocate Supreme Court instructed by A. Aziz Dastagir Advocate‑on‑Record for Respondents (in Civil Appeals Nos. K‑195/80 and K‑196/80).

Dates of hearing: 30th and 31st January, 1984 and 1st February, 1984.

‑‑Leave was granted in all these appeals on the basis of the order granting leave in Civil Petition for Special Leave to Appeal No. K‑36 of 1971, Commissioner of Income‑tax, Karachi v. Messrs Shenjohon Steamship Company Limited which was subsequently registered as Civil Appeal No. K‑45 of 1971. Therefore, there is a common point of law involved in all these appeals, namely, whether initial and additional depreciation can be allowed under section I 10(2) (iv) of the Income‑tax Act, 1922 and Rule 8(2) (now Rule 9) off the Income‑tax Rules in case of a ship registered outside Pakistan and not installed in Pakistan and which did not ply in Pakistan for then first time. In Civil Appeal No. K‑45 of 1971 it has been held that in the case of non‑resident shipping company whose ships ply throughout the world and whose income was being assessed on the basis of world income under Rule 33 (now Rule 40) of the Income‑tax Rules, initial and additional depreciation under the aforesaid provisions of law will be available while assessing the income of such non‑resident assessee company under the aforesaid method of computation.

2. It is accordingly not necessary to set out the facts in detail in respect of each case in this judgment. All the respondents' companies in these appeals are also foreign shipping companies non‑resident in Pakistan and have been assessed under the same provisions as in the case of Messrs Shennihon Steamship Company Limited in Civil Appeal No. K‑45 of 1971. However, six appeals are slightly distinguishable in regard to the facts because in these appeals the assessment years under consideration by the Authorities under the Act were after the Finance Act, 1967 which brought about a change in the relevant provisions of section 10(2)(vi), so that the depreciation allowance thereunder was available only in regard to a ship "not having previously been used in Pakistan has been installed in Pakistan." The words "in Pakistan" were, therefore, not a part of the law before amendment of 1967. But in the case of the following six appeals the law had been amended as indicated:‑

1. Civil Appeal No. K‑173/80 1968‑69

2. Civil Appeal No. K‑178/80 1967‑68

3. Civil Appeal No. K‑184/80 1967‑68

4. Civil Appeal No. K‑194/80 1967‑68

5. Civil Appeal No. K‑195/80 1967‑68

6. Civil Appeal No. K‑196/80 1968‑69

3. Before dealing with the aforesaid six appeals it may be stated that the decision in Civil Appeal No. K‑45 of 1971 applies on all fours to the rest of the appeals herein and they are, therefore, accordingly dismissed with costs for the same reasons.

4.Learned counsel for the appellants in the aforesaid six appeals urged that the law having changed in 1967, the depreciation allowances in question in these appeals would only be available in regard to ships which were installed or registered in Pakistan in view of the clear import of the language incorporated by the amendment. It way, therefore, contended that the Tribunal and the High Court was not justified in disposing of these appeals on the same basis as the cases falling for determination under the pre‑existing law before the said amendment. We are, however, not inclined to consider this question in these cases as leave was not granted on this question of law, nor was this point specifically urged in the petitions which are a verbatim copy of the petitions filed in regard to cases relating to the period prior to the amendment. It seems that this point was also not urged before the High Court, so that we do not have the benefit of the view of the High Court on this point. We accordingly dismiss these six appeals also

M.I. Appeals dismissed.

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