Income Tax Ordinance (XXXI of 1979)---

----Ss. 156 & 13(1)(a)---Review---Rectification of mistakes---Request to recall order---Nothing wrong with the order passed 'by the Appellate Tribunal, where ground relating to addition made under S.13(1)(a) of the Income Tax Ordinance, 1979 on account of unexplained cash credits was not adjudicated by the Appellate Tribunal on the basis of non argument/agitation.

Abdul Hameed Chaudhary, F.C.A. for Applicant.

Javed-ur-Rehman, D. R. for Respondent.

Date of hearing: 28th August, 2002.

ORDER

1. Through this miscellaneous application filed at the instance of the asses see-applicant a request has been made to recall the order recorded in I.T.A. No .202/LB of 1999, dated 20-5-2002 in terms of section 156 of the Income Tax Ordinance, 1979 as the Tribunal had mistakenly failed to adjudicate upon the ground appearing at Serial No.1 of the memo. of appeals which was related to the addition made under section 13(1)(a) of the Income Tax Ordinance, 1979 amounting. to Rs.48,06,871 particularly when that was duly agitated at the time of hearing of the appeal. .

2. According to the learned counsel for the assessee a mistake has occurred in reporting the statement of Mr. Abdul Hamid Chaudhary, F.C.A. made at the bar, apparently inadvertently, insofar as he had made a specific request for deletion of the impugned addition made under section 13(1)(a) of the Income Tax Ordinance, 1979. A statement on oath has also been filed by the said learned. counsel for the assessee to support his contention. Thus this discrepancy in the order of the Tribunal constitutes a mistake which is apparent from record and hence rectifiable under section 156 of the Income Tax Ordinance, 1979. On the other hand the learned DR has also been heard.

3. Actually the application for rectification of mistake is misplaced as no mistake or error patent from record has been pointed out. The purport and the tenor of the application is, in fact, to review the order already made by the Division Bench of this Tribunal which, is obviously not warranted by the judicial propriety. It is also trite law that the same judicial forum is not vested with the powers to review its own order.

4. What happened in this case was that at the beginning of hearing at the bar of the appeal the learned counsel for the assessee had categorically stated that he does not intend to argue the point relating to setting aside addition of Rs.48,06,871 made under section 13(1)(a) on account of unexplained creditors as the re-assessment proceedings are in the offing and he would be able to explain sources of creditors at that stage. We have also consulted our notes recorded in the Court register as well as the appeal documents whereby it clearly spells out that ground No.1 was not pressed by the learned counsel for the assessee. There is not an iota of evidence in our record wherefrom it could be deduced as A to whether ground relating to the addition made under section 13(1)(a) on account of unexplained cash creditors was ever agitated before the Tribunal. The learned AR could not, however, satisfy us about the provisions under which this review was sought. In any case, we find that there was nothing wrong with the order passed by this Tribunal.

5. The learned AR of the assessee has also shown his anxiety that since appeal against re-adjudicated order is pending for, decision before the First Appellate Authority and there is every likelihood that he may refuse to dilate upon this issue being this ground was not pressed before the Tribunal, as such cognizance on this point cannot be taken in the second round of litigation. This contention of the assessee does not have any legs to- stand upon. It is so because the Tribunal has decided the assessee's appeal against the assessment originally made while the appeal before the First Appellate Authority is pending for adjudication against the reassessment order made by the department in this -case-: There should not be any, ambiguity with the Appeal Commissioner in refusing to hear such plea of the assessee at this stage.

The miscellaneous application is accordingly disposed of.

C.M.A./669/Tax(Trib.)Application disposed of.