MESSRS H.I. (PVT.) LIMITED, LAHORE VS INCOME-TAX APPELLATE TRIBUNAL
2002 P T D 212
[Lahore High Court]
Before Nasim Sikandar and Mansoor Ahmad, JJ
Messrs H.I. (PVT.) LIMITED, LAHORE
Versus
INCOME-TAX APPELLATE TRIBUNAL and others
Income-tax Appeal No. 390 of 1998, decided on 11/09/2001.
Income Tax Ordinance (XXXI of 1979)---
----S. 136---Appeal to High Court---Question of fact---Question as to whether assessee purchased an open plot or some construction was also raised thereupon was predominantly a question of fact and could hardly be a subject-matter of appeal td High Court.
M. Iqbal Hashmi for Petitioner.
ORDER
NASIM SIKANDAR, J.---This further appeal under section 136 (since amended) of the Income Tax Ordinance, 19"79 assails an order recorded by the Lahore Bench of the Income Tax Appellate Tribunal on 28-4-1998.
2. The petitioner is a private limited company and an assessee of the Income Tax Department. For the assessment year 1991-92 which was the first year of its operation a return was filed to declare loss of Rs. 39,134. The Assessing Officer by way of the assessment order recorded on 30-9-1992 accepted the claimed exemption under clause (118-E) of the Second Schedule to the Income Tax Ordinance, 1979. Subsequently the IAC, Range-III Companies Zone-I, Lahore reopened the assessment so farmed and finally directed its cancellation for de novo proceedings. Earlier it was found that the investment made in purchase of a plot by the Company before its incorporation was not properly examined by the Assessing Officer. The cancellation of assessment was unsuccessfully challenged before the learned Tribunal. A Division Bench thereof agreed with the findings recorded by the revising authority that the registered sale-deed indicated only purchased of a plot and in absence of mentioning of any building thereupon, the investment made thereon could not justifiably be bifurcated to explain the source and time of acquisition. The petitioner/assessee sought to introduce fresh evidence before the Tribunal in the form of certain documents from the suppliers of civic amenities namely WAPDA, Sui-Gas etc. to show that a structure did stand on the land purchased by the assessee even earlier to its purchase by it. Learned Members, however, refused to accept the evidence on the ground that none of these bills identified the property purchased by the assessee or could be co-related to it.
3. According to the assessee following two questions of law emerged out of the order of the Tribunal:---
(i)Whether the facts and in the circumstances of the case, respondent No. 1 was justified to confirm the order under section 66-A passed by the respondent No. 2 in respect of the purchase which was made on 14-8-1990 i.e. before the incorporation of the appellant company?
(ii)Whether on the facts and in the circumstances of the case, respondent No. 1 was justified to hold that purchase of land was made and building had not been purchased alongwith the plot of land?
4. Learned counsel for the petitioner has not pressed Question No. 1. As regards Question No. 2 he is of the view that the Tribunal ought to have made the remand of the matter to the concerned IAC after setting aside his order of cancellation. In the view of the learned counsel if the Tribunal was not satisfied that documents placed before it did not relate to the property purchased by the assessee, the only way out being a direction to the revising authority to hold a factual inquiry and to make a fresh decision on the basis of findings of such inquiry.
Having heard the learned counsel at pre-admission stage, we are not inclined to entertain, the appeal. Without an iota of doubt only a question of law arising out of the order of the Tribunal could be a subject-matter of appeal to this. Court under section 136 of the Income Tax Ordinance, 1979 which stand amended now. The Question No. 2 as framed does not raise any legal controversy. The issue if the assessee! purchased an open plot or some construction was also raised thereupon is! predominantly a question .of fact and, therefore, can hardly be a subject- matter of further appeal to this Court. We are not persuaded to agree that A the learned Members of 6c Tribunal were obliged to direct a remand. In fact the learned Members never called for any evidence and the one produced by the petitioner was considered by them only as a matter of grace. The petitioner having no right to introduce evidence at the stage of the Tribunal, their consideration of the same apparently was done to fulfil the ends of justice.
6. Be that as it may, Question No. 2 as pressed before us does not raise any legal controversy, and therefore, cannot be entertained by this Court for its detailed consideration.
7.Appeal dismissed in limine.
C.M.A./M.A.K./H-61/LOrder accordingly.