(a) Wealth Tax Act (XV of 1963)---

----Ss. 24 & 35---Income Tax Appellate Tribunal Rules, 1981, Preamble-- Appeal and application filed under Wealth Tax Act; 1963 would be regulated by the Income Tax Appellate Tribunal Rules, 1981.

(b) Wealth Tax Act (XV of 1963)---

----S.35---Rectification of mistake---Application for rectification of mistake- Limitation---Time limit under S.35, Wealth Tax Act, 1963 was prescribed for the first rectification application against the order of Tribunal and if first application stood decided by an order on merits then second such application on the same grounds or issues for rectifying -the original order of the Tribunal, would no lie.

(c) Wealth Tax Ac (XV of 1963)---

----S.35---Income tax Appellate Tribunal Rules, 1981, R.20---Rectification of mistake ---Second application for rectification of mistake ---Assessee filed second application for rectification of original order of Appellate Tribunal on the same grounds on which the first application was filed, which was dismissed ex parte or merits on the ground that Tribunal had not found any apparent mistake in he order.--Validity---Appellate Tribunal could not go into any further scrutiny or reappraisal of the Tribunal's order for digging out any mistake Apparent there from---Such exercise by the Tribunal would amount to sitting over the judgment of the Tribunal again and would tantamount to uncalled for re-adjudication of the matter by the Tribunal when the same had already been adjudicated---Second application for rectification was dismissed.

1993 TD 206 and (1986) 55 Tax 32 (Trib.) 276 ref.

1975 PTD 52; 1986 PTD 100; (1986) 158 ITR 420; (1979) 119 ITR 142; 1986 D 100; 1980 PTD (Trib.) 74; (1982) 138 ITR 238 and (1965) 55 ITR (Sh. N ) 24 distinguished.

Dr. Ilyas Zafar and Ghulam Abbas Chatha for Applicant.

Muhammad Suleman, A.C.I.T. for Respondent.

Date of hearing: 7th August, 1999.

ORDER

This order is intended to dispose off above two miscellaneous applications filed by the assessee/applicant under section 35 of the Wealth Tax Act, 1963 (hereinafter called the Act) seeking rectification of orders of the Tribunal passed on 21-11-1995 in W.T.As. Nos.38 and 39(113) of 1993-94 relating to assessment years 1989-90 and 1990-91.

2.The assessee/applicant has recollected the facts as under:---

(1) that the applicant declared his net wealth at Rs.7,77,720 and Rs 4,22,320 for the assessment years 1989-90 and 1990-91 respectively and while framing the assessment, the Assessing Officer observed that 1/2 share of residential house No.9, situated in Street N 30, F-7/1 Islamabad shown in the previous years has not been declared in the wealth tax returns;

(2) that in reply to the notice, the assessee apprised the Assessing Officer that the said house was sold on 17-10-1988 to M/s. A.R. Pall. Investment Ltd., and his share amount of Rs.25.00,000 was gifted to near relatives and the applicant furnished the copy of the registered sale-deed, dated 17-10-1988 and sale a agreement, dated 11-7-1988 alongwith the copies of gift deeds, as evidence to support his contention;

(3) that in order to verify the contention of the applicant the Assessing Officer issued notice to the purchaser of the house, M/s. A. R. Pak Investment Ltd., who acknowledged the purchase of the house for Rs.72,00,000 instead of Rs.50,00,000 and furnished the copy of the Agreement to sell, dated 24-9-1988 and sale agreement, dated 15-10-1988 and that the Assessing Officer relied upon these two documents ignoring registered sale-deed, dot; ;d 1 7-10-1988 and sale agreement, dated 11-7-1988 although these doc ;intents reconciled with each other but the documents relied b3 r the Assessing Officer contradicted with each other and that the sale agreement, dated 15-10-1988 showed the payment of Rs.2 2,00, 10 in cash and Rs.50,00,000 through pay order and the registered sale-deed showed the payment of Rs.50,00,000 in cash and summarized detail of documents was as under:---

(4) that the Assessing Officer ignoring the contentions of the assessee relied on the documents at serial Nos. (iii) and (iv) above, which were self-contradictory and made the addition of Rs.11,00,000 (as 1/2 share) in the net wealth of the, assessee, vide his order, dated 30-10-1991;

(5) that the Assessing Officer rejecting the contentions of the assessee that the cash gift can be made either on oral basis or through a gift deed written on stamp paper, made the addition of Rs.25,00,000 in the net wealth of the assessee vide order, dated 30-10-1991;

(6) that the learned CWT(A) observing the blatant discrepancy in both the ,agreements with the sale-deed, deleted the addition vide his .order', dated 19-9-1993;

(7) that the learned CWT(A) agreeing with the contention of the assessee applicant that the oral gift cart be made in accordance with the Muslim Law and that the written deed was not obligatory under the said law) deleted the addition of gifted amount vide his-order, dated 19-3 -1993;

(8) that the department filed an appeal before ITAT which was fixed for hearing on 30-10-1995 and relying on the contradicting statements of the agent sand his partner, the Tribunal restored the order' of the Assessing Officer/WTO;

(9) that the assessee/appellant filed a miscellaneous application on the 18th March; 1996, praying that the documents relied by the Assessing Officer and the purchaser of the house, does not bear the signatures of the assessee and no pay order was delivered to the assessee, therefore, these facts may be considered and that application was rejected ex parte without considering these points; and '

(10) that the assesee filed a W.P. No.2043 of 1996 before High Court which was dismissed on 12-4-1999 on the ground that this Court cannot go into factual issues and further appeal before Supreme Court was also dismissed on the same ground on 26-5-1999.

3. On the basis of above facts, the assessee/applicant has come to us through these miscellaneous applications for rectification of the order of the Tribunal, dated 21-1 1-1995 on the; following grounds:---

(a) that Qanun-e-Shahadat Ordinance, 1984 was applicable to income tax proceedings (1993 PTD 206) and under its Article 85(5). Registered sale-deed was a public document which could not be ignored against an unregistered document which was a private document under Article 86 (ibid) and that overlooking of a legal provision was a mistake apparent on' record which was rectifiable (1986).55 Tax. 32 (Trib.) 276:

(b) that the learned ITAT has relied on the private documents which were alleged to have forged signatures and that although the plea of the assessee was not accepted but the contradiction in these documents escaped the attention of the learned Tribunal which was rectifiable:

(e) that the oral gift was a genuine transaction as held by Supreme Court of Pakistan also escaped the attention of the learned Tribunal; and

(d) that an affidavit of the assessee/applicant supporting both the above contentions has also been attached.

4. Hence the above applications.

5. We have heard Dr. Ilyas Zaffar, Advocate arid Mr. Ghulam Abbas Chatha. Advocate for the assessee/applicant and Mr. Muhammad Suleman, ACIT for the respondent/department.

6. Before discussion the points in issue and merits of the above applications, we may like to state here the chronology of the events and orders passed by various tax forums and authorities in respect of assessment years under consideration.

7. The Assessing Officer/WTG passed the order under section 16(3) of the Wealth Tax Act, on 30-10-1991 assessing net wealth of the assessee at (i) Rs.51,36,220 and (ii) Rs.51,65,620 as against declared net wealth at (i) Rs.7,77,720 and (ii) Rs.14,22,320 for the assessment years in question respectively.'

8. Against the above assessment of wealth, the assessee went in appeal and the learned first appellate authority vide order, dated 19-9-1993 deleted the addition of Rs.11,00,000 for each year made allegedly on account of suppression of the sale value of the house and further deleted the addition of Rs.25,00,000 as made for each year allegedly for non-acceptance of gift and then finally directed the Assessing Officer to re-compute the additional tax on the basis of outstanding demand after appeal effect.

9. Then the department, feeling aggrieved with the relief granted by the first appellate forum, assailed the order before this Tribunal and the Tribunal vide order, dated 21-11-1995 passed in W.T.A. Nos.38 and 39(IB) of 1993-94 vacated the order of the learned CWT(A) and restored that of the W.T.O. and also remitted the case to learned CWT(A) on the issue of penalty order of the W.T.O. under section 18(1)(c) with the direction to give his decision on the reasonability of the penalty.

10. Thereafter, the assessee again approached this Tribunal by filing miscellaneous applications under section 35 of the Act for rectification of the order, dated 21-11-1995 and this Tribunal vide order, dated 27-8-1996 passed in M.As.(R) Nos.60(IB) and 61(IB) 1995-96 dismissed the said applications.

11. Thereafter, as per information disclosed in para. 10 of the present miscellaneous applications, the assessee filed writ petition (No.2043 of 1996) in the Honourable Lahore High Court which was dismissed on 12-4-1999 and then the assessee filed appeal before the Honourable Supreme Court of Pakistan which too was discussed on the grounds that the Court cannot go into factual issues.

12. Now again the assessee has come to us by way of above miscellaneous application under section 35 of the Act filed on 15-7-1999 seeking rectification of the order of this Tribunal, dated 21-11-1995 passed in W.T.A. No.38/39 (IB) of 1993-94 for the assessment years 1989-90 and 1990-91.

13. From the chronology of dates of various decisions made by the forums concerned in_ the above case, one thing became clear that the present miscellaneous applications for rectification under section 35 of the order of the Tribunal, dated 21-11-1995 have been filed for the second time and the miscellaneous applications for rectification of the said order filed earlier were disposed off vide tribunal's order, dated 27-8-1996 which were heard and decided ex parte on merits as none appeared on behalf of the assessee/applicant. It was further obvious that assessee/applicant also approached Honourable High Court through writ petition and then Honourable Supreme Court of Pakistan through appeal and his writ petition and appeal were -dismissed. and then the assessee/applicant filed the present miscellaneous applications which ranked second in time to the miscellaneous applications filed and decided vide order, dated 27-8-1996.

14. We may like to state here that Rule 20 of I.T.A.T.' Rules, .1981 regulates the procedure of hearing of appeal before the Tribunal. In sub rule (2) of. Rule 20 of the I.T.A.T. Rules, 1981, the Tribunal has been empowered to proceed ex parte in case of non-appearance of a party and then to decide the appeal on merits.. Sub-Rule (3) of Rule 20 deals with the situation when none of the parties appear when the appeal or application is called on for hearing and there the Tribunal in its discretion, has been allowed to decide the appeal on merits on the basis of the record available.

15. Then there is a proviso given under the said rule which says that the Tribunal may recall the order passed under this rule if the party in default applies within thirty days of the date of communication of the order and satisfies the Tribunal that he was prevented by any sufficient cause from appearing when the appeal or application was called on for hearing.

16. In subsection (11) of section 24 of the Wealth Tax Act, 1963, it is laid down that the provisions of subsections (5), (7) and (8) of section 133 of the Income Tax Ordinance, 1979 shall apply to the Appellate Tribunal in the discharge of its functions under the Income Tax Ordinance, 1979. In the definition 9f Appellate Tribunal given in section 2(1)(2) of the Wealth Tax Act, 1963, it is provided that the "Appellate Tribunal" means the Appellate Tribunal appointed under section 133 of the Income Tax Ordinance, 1979. It has been given in subsection (2) of section 2 of the Act that the words and expression used but not defined in the Act shall have the meaning assigned to them under the Income Tax Ordinance, 1979.

17. The Income Tax Appellate Tribunal Rules, 1981 have been made under the powers conferred by subsection (8) of section 133 of the Income Tax Ordinance, 1979. No such separate rules of the Tribunal have been made or framed on the wealth tax side. However, as stated above, the appeals filed on the wealth tax side would obvious, he dealt with the Appellate Tribunal constituted under the Income Tax Ordinance, 1979 therefore, we have to -follow the I.T.A.T. Rules, 1981 framed for regulating the procedure of the Appellate Tribunal and the appeals and applications filed under the Wealth Tax Act, 1963 would also be regulated by the said rules.

18. 'As no separate rules have been made or framed for dealing with the miscellaneous applications under section 156 of the Ordinance or tinder section 35 of the Act for rectification of the order of the Tribunal, therefore, obviously we will have to regulate procedure for hearing of the said applications as prescribed for the hearing of the appeals under Rule 20 of the I.T.A.T. Rules, 1981.

19. In Rule 20, the margin designates the "hearing of appeal." But if we go to sub-rule (3) of said rule. It stands extended to appeal as well as application which is called on for hearing by the Tribunal and there is proviso to the said rule that ex parte order can be recalled if the defaulting party applies to the Tribunal within thirty days of the date of communication of the said order on his satisfying the Tribunal that he was prevented by any sufficient cause from appearing when appeal or application was called on for hearing. The use of words, "appeal" or "application" obviously is linked with hearing of appeal or -any other miscellaneous application by the Tribunal. Under section 35 of the Act and under section 156 of the Ordinance, miscellaneous application for rectification of the order is filed and for that the said rule would apply through analogy as well as through the expressed provisions by the use of words i.e., "appeal" or "application". The hearing of any miscellaneous application including rectification application would stand regulated by the provisions of said rule of I.T.A.T. Rules, 1981.

20. It became obvious from the above that the present applications which have been filed for the second time for rectification of the order of the Tribunal, dated 21-11-1995 have been filed almost on the same grounds as raised in the earlier application filed for rectification of the said order which were dismissed by the Tribunal vide order, dated 27-8-1996. The assessee/applicant, instead .of availing of the opportunity of moving an application to the Tribunal for recalling the order, dated 27-8-1996 as per provisions` contained in the Proviso under sub-rule (3) of Rule 20 of the I.T.A.T. Rules, 1981 filed the present miscellaneous applications for rectification of the original order of the Tribunal, dated 21-11-1995. It was obvious from the order of the Tribunal, dated 27-8-1996 passed on the earlier applications for rectification that the Tribunal could not find any apparent mistake from the order of the Tribunal, dated 21-11-1995 and accordingly the Tribunal dismissed the miscellaneous applications for rectification ex parte on merits after hearing the learned D .R. In the presence of the order which has been passed on merits while considering the grounds as raised by the assessee/applicant before the Tribunal in, the earlier miscellaneous application for rectification, the filing of these miscellaneous applications for rectification again under section 35 of the Act seeking rectification of the order of the Tribunal, dated 21-11-1995 would amount to recall or review of the earlier order of the Tribunal, dated 27-8-1996 passed on earlier miscellaneous applications. This in fact, would also tantamount to double adjudication of the matter by the Tribunal can the same issues which. stood decided on merits by the Tribunal vide order, dated 27-8-1996 in the earlier applications against which no application for recalling of .the order was moved under the provisions of Rule 20 of the I.T.A.T. Rules, 1981. The assessee/applicant instead approached the Honourable Superior, Courts by invoking writ jurisdiction of the Honourable High Court and then by way of appeal-to the Honourable Supreme Court of Pakistan but his writ petition and the appeal were dismissed and. then the assessee/applicant came to this Tribunal again by way of these miscellaneous applications for rectification, perhaps by keeping in view the time limit of four years as prescribed under section 35 of the Act. In our view, the said time limit is prescribed for the first rectification application against the order of the Tribunal and. if first application stand decided by an order on merits then second rectification application on the same grounds or issues for rectifying the original order of the Tribunal would not lie: In the instant case, the first application stood decided on merits wherein the Tribunal held that there was no apparent mistake to rectify the order and as such the order of the Tribunal need not called for rectification. 1n the present case, the remedy, if at all was to be sought for, stood available under Rule 20 of I.T.A.T. Rules, 1981 by way of moving applications for recalling of the order, dated 27-8-1996 passed by this Tribunal in the earlier miscellaneous applications for rectification which was passed on merits but ex parte because no one appeared on behalf of the assessee/applicant.

21. Moreover, there is clear finding of the Tribunal in the order, dated 27-8-1996 to the effect that no apparent mistake has been pointed out by the applicant which arose from the orders of the Tribunal. While referring to the order of the Tribunal passed in appeals, wherein it had been held that the property in question was sold for Rs.7.2 million and not Rs.5 million as claimed by the assessee, the Tribunal in the order, dated 27-8-1996 came to the conclusion that all the facts put forth before the ITAT had duly been considered while disposing of the appeals filed by the department. Finally, the Tribunal was convinced to find no merit in the said miscellaneous applications filed by the assessee/applicant which were accordingly dismissed.

22. In the presence of above specific findings in respect of order of the Tribunal, dated 21-1 1-1995 as given by the Tribunal vide order, dated 27-8-1996 passed in the earlier miscellaneous applications for rectification, now again this Tribunal, in our view, cannot go into any further scrutiny or reappraisal of the said order of the Tribunal for digging out any mistake apparent there from as has been alleged by the applicant/assessee by way of instant applications for rectification of order of the Tribunal, dated 21-11-1995. Rather it would amount to sitting over the judgment of the learned members of the Tribunal again and would tantamount to uncalled for re-adjudication of the matter by this Tribunal when the same had already been adjudicated on merits by this Tribunal.

23. Therefore, we need not go into further merits of the instant applications and the issues raised by the learned A.R. in that context and on the basis of above discussion find .no alternative but to dismiss these miscellaneous applications filed for rectification of order, dated 21-11-1995 of the Tribunal passed in appeals (W.T.A. No.38/39 (IB) of 1993-94).

24. Before parting with this judgment, we may like to observe that the case-laws, (i.e.), (i), 1975 PTD 52, (ii), 1986 PTD 100, (iii), (1986) 158 ITR 420, (iv), (1979) 119 ITR 142, (v), 1986 PTD 100, (vi), 1980 PTD (Trib.) 74, (vii), (1982) 138 ITR 238) as referred and relied upon by the learned A.R. while arguing the case, were not covering particularly the situation in hand because the instant miscellaneous applications for rectification have been filed for the second time seeking rectification of the order of the Tribunal passed in appeals whereas earlier applications filed for rectification of the said order already stood decided on merits but ex parte and no applications for recalling of the ex parte order as per provisions of Rule 20 of I.T.A.T. Rules, 1981 were filed. Although, in that context, a case from Indian jurisdiction reported as [(1965) 55 ITR (Sh.N) 24)] was referred by the learned A.R. but that case was concerning. a subsequent rectification application in respect of another apparent mistake which was not raised in the earlier application.

25. As a result of above, both the miscellaneous applications, filed by the assessee/applicant for rectification of the order of the Tribunal, dated 21-11-1995, shall stand dismissed.

C:M.A./105/Tax(Trib.)Applications dismissed.