COMMISSIONER OF INCOME-TAX VS SHIRAZI INVESTMENT
2001 P T D 999
[Karachi High Court]
Before Saiyed Saeed Ashhad and Zahid Qurban Alavi, JJ
COMMISSIONER OF INCOME‑TAX
Versus
SHIRAZI INVESTMENT
I.T.A. No. 443 of 1990, decided on 01/02/2000.
(a) Income Tax Ordinance (XXXI of 1979)‑‑‑
‑‑‑‑Ss. 136 & 131‑‑‑Appeal to Appellate Tribunal‑‑‑Procedure‑‑‑New or fresh evidence/material was not permissible to be brought on the record by the Appellate Tribunal at the stage of Second Appeal.
Memoona Ahmed v. The A.C.I.T. 1998 PTD 2969 ref.
(b) Income Tax Ordinance (XXXI of 1979)‑‑‑
‑‑‑‑S.136‑‑‑Appeal/reference to High Court‑‑‑Finding of fact arrived at b) the Income‑tax Appellate Tribunal on the basis of proper reading and appreciation of the evidence on record cannot be interfered with by the High Court in exercise of its power under S.136, Income Tax Ordinance, 1979
C.I.T. v. Abdul Karim Transport Co. Ltd. 1993 P T D 508 ref.
Jawed Farooqi for Appellant.
Mazhar Jafri for Respondent.
Date of hearing: 1st February, 2000.
JUDGMENT
SAIYED SAEED ASHHAD, J.‑‑‑This Income‑tax case has arisen out of the order of the Income‑tax Appellate Tribunal, dated 27‑3‑1990 passed in R.A. No: 136/HQ of 1989‑90 where the application filed by the applicant/assessee under section 136(I), as it then was, of the Income Tax Ordinance was rejected refusing to refer the alleged question of law to this Court for its opinion. The question of law framed by the applicant for being referred to this Court is as under:
"Whether in view of the facts and. circumstances, of the case, the learned Income‑tax Appellate Tribunal was justified in relying upon some documentary information which had been specifically mentioned by the Commissioner of Income‑tax (Appeals) and the Income‑tax Officer to have ever been filed produced before them."
Feeling aggrieved and dissatisfied with the order of the Appellate Tribunal the applicant approached this Court.
For the purpose of deciding this question we do not consider it necessary to reproduce the facts of the case as the grievance of the applicant is that the Income‑tax Appellate Tribunal in arriving at the findings, in its order, dated 27‑8‑1989 in I.T.A. No. 32‑56‑KB of 1986‑87 had taken into consideration the documents and material which were not produced by the applicant/assessee either before the Income‑tax Officer or before the First Appellate Authority and thereby had violated the provisions of section 131 of Income Tax Ordinance.
From the perusal of the order of the Tribunal in I.T.A. No. 32?56/KB of 1986‑87 as well as in R.A. No. 136‑HQ of 19.89‑90 it transpired that the Tribunal had not taken into consideration any fresh material or documents and had placed reliance solely on the material and documents which had already been filed alongwith the return. In this connection it will be appropriate to refer to the relevant portion of the order of the Tribunal in I.T.A. No. 32‑56‑KB of 1986‑87 which is as under:
"However, I think that both the officers below come to this conclusion as they failed to examine the accounts of the appellant though they were available on record. I have gone through the Annexures filed by the appellant alongwith the return as well as the balance‑sheet. It is true that quite handsome amount has been shown as loan receivable by the appellant. However, the interest received on such loans has been disclosed in details. Moreover, from perusal of the Memorandum of Association it also appears .that financing of various persons was one of the functions of the appellant. "
It will also be appropriate to reproduce the order of the Appellate Tribunal in R.A. No.? 136‑HQ of 1989‑90 which is as under:‑‑
"The departmental record is not available with the learned D.R. and a perusal of the order of this Tribunal dated 27‑8‑1989 shows that the finding of this Tribunal is based on the appreciation of documents, available on record which are stated to have beer filed alongwith the return. No new evidence was either entertained by this Tribunal or considered as envisaged in the question sought to be referred. In these circumstances the question proposed by the department is misconceived factually. We, therefore, refuse to refer the proposed question to the Honourable High Court."
From the perusal of the portions of the orders of the Tribunal in the second appeal as well as in the reference application it is absolutely clear that the Tribunal had not entertained or allowed the assessee to file any fresh document and material at the stage of the second appeal and had based its decision and findings on the material and evidence which had been filed by the assessee alongwith its return. In the circumstances of the case the grievance of the department that new or fresh evidence and materials as allowed to be brought on record at the stage of the second appeal before the, Income‑tax Appellate Tribunal, which was not permissible in view of the provisions of Income Tax Ordinance as well as was contrary to the observations made by the Quetta High Court in the case of Memoona Ahmed v. The A.C.I.T. 1998 PTD 2969 is without any substance as it is not borne) out from the material on record.
It is an admitted principle that a finding of fact arrived at by the, Tribunal on the basis of proper reading and appreciation of the evidence on record cannot be interfered with by this Court in exercise of its power under section 136 of the Income Tax Ordinance, as it existed then. Reliance for the above is placed on the case of C.I.T. v. Abdul Karim Transport Co. Ltd. reported in 1993 PTD 508.
Upon discussion we find that the question of law framed by the applicant for seeking opinion of this Court, cannot by any stretch of imagination be said to be a question of law and we refuse to answer the same.
This Income‑tax case stands disposed of in terms of the above observation.
M.B.A./C‑20/K?????????????????????????????????????????????????????????????????????????????????? Order accordingly.