(a) Income Tax Ordinance (XXXI of 1979)‑‑‑--

-----S. 156‑‑‑Rectification of mistake‑‑‑Material relied upon for rectification of mistake was not available on record at the time of deciding of appeal‑‑‑By no stretch of imagination it could be presumed that there was mistake apparent from the record of the Tribunal as available at the material time of deciding the appeal.

(b) Income Tax Ordinance (XXXI of 1979)‑‑‑

‑‑‑‑S. 156‑‑‑Rectification of‑ mistake‑‑-Request for rectification on the basis of judgments‑‑‑Validity‑‑‑If practice of accepting the request for recalling the orders was allowed on the basis of judgments on which a party subsequently lays its hands then there would be no end to the assessment or appellate proceedings.

(c) Income Tax Ordinance (XXXI of 1979)‑‑‑

‑‑‑‑S. 156‑‑‑Rectification of mistake‑‑‑‑Very limited jurisdiction was available under S.156 of the Income Tax Ordinance, 1979 which could be exercised only when the mistake was floating on the surface‑‑‑Where an enquiry was required to be made or a reappraisal of the facts or legal provisions was necessary to deviate from the earlier finding, then that was not considered to be a mistake floating on the surface or rectifiable under the law‑‑‑Where an authority had given conscious finding on an issue, then that authority was not empowered under the law to review its own order on the basis of subsequent evidence.

(d) Income Tax Ordinance (XXXI of 1979)‑‑‑

‑‑‑‑S.156‑‑‑Rectification of mistake‑‑‑Subsequent evidence or explanation of law‑could not be allowed to bring on record so as to necessitate action under S.156 of the Income tax Ordinance, 1979.

(e) Income Tax Ordinance (XXXI of 1979)‑‑‑

‑‑‑‑Ss. 52/86‑‑‑Order under Ss.52/86 of the Income Tax Ordinance, 1979 was not an order of assessment.

(f) Income Tax Ordinance (XXXI of 1979)‑‑‑

‑‑‑‑Ss. 156 & 52‑‑‑Rectification of mistake‑‑‑Rectification application on the ground that a mistake apparent from the record had crept in while deciding the appeal insofar as the Appellate Tribunal did not consider a reported case where another Bench of the Appellate Tribunal had held that an order under S.52 of the Income Tax Ordinance, 1979 could be passed only during the period for which a notice under S.61 of the Income Tax Ordinance, 1979 could be issued and there was difference of opinion between the two decisions of the Benches and the earlier decision should be followed by the Appellate Tribunal‑‑‑Validity‑‑‑Appellate Tribunal decided the appeal on the basis of material available on record at the time of making decision of original appeal‑‑‑No mistake was apparent within restricted jurisdiction available under S.156 of the income Tax Ordinance, 1979‑‑‑Application under S.156 of the Income Tax Ordinance, 1979 was rejected by the Appellate Tribunal in circumstances.

2003 PTD (Trib.) 1167; CIT v. Hossen Kassem Dada Kye (1969) 4 Tax 96; I.T.As. Nos. 445 to 449/KB of 1998‑99 and (1995) 72 Tax 165 distinguished..

Munir Ahmed Ansari for Appellant

Zaki Ahmed, D.R. for Respondent.

Date of hearing: 12th June, 2003.

ORDER

MUHAMMAD AKHTAR NAZAR MIAN (ACCOUNTANT MEMBER).‑‑‑The matter pertaining to order under sections 52/86 of the Income Tax Ordinance, 1979 (hereinafter called the Ordinance) was decided by this Tribunal in I.T.A. No. 172/KB of 2002 (Assessment year 1995‑96) on 20‑3‑2003. The learned CIT(A) against whose order, the Department had come in appeal before us had cancelled the order passed by the Assessing Officer under section 52 of 1986 of the Ordinance observing that assessment of the Income of the assessee, who was declared as assessee in default under section 52 in the year impugned before him had been completed on 30‑9‑1995 under the Broad Based Self‑Assessment Scheme of the year, and therefore, no order under section 52 could be passed beyond 30th September, 1999 and therefore, the order under section 52 passed by the Assessing Officer on 24‑4‑2001 was hit by limitation and therefore, it was cancelled. While giving his decision the learned CIT(A) had observed that limitation for the purpose of passing order under section 52 would start from the date on which the assessment is purported to have been completed on filing return on 30‑9‑1995 under the Board Based Self‑Assessment Scheme for the assessment year 1995‑96 and therefore, order under section 52 could be passed within four years of the said order of assessment of income of this assessee in default. In order to arrive at this conclusion the learned CIT(A) was influenced by the dictum that special provisions of law prevail over normal law.

2. Before us the Department has come in appeal on the ground that no limitation of time had been prescribed in the Ordinance for passing the order under sections 52/86 and that the Self‑Assessment Scheme did not constitute special enactment as the same was framed under section 59 of the Ordinance. In this connection while deciding the appeal the Tribunal analyzed relevant provisions of law is paras. 6 and 7 of its order, and resultantly vacated the order of the learned CIT(A) and set aside the order of the Assessing Officer with certain directions. Relevant paras. 6 and 7 of the said order as reproduced below:‑‑

Assessment year 1095‑96

6.???????? There is no denying the fact that while interpreting statutes, special provisions of law prevail over general provisions of law but it squarely important to note that this priority to special provisions of law is only to the extent, for which the said special provision of law is made. Section 59 of the Ordinance pertaining to Self‑Assessment Scheme is included in Chapter 7 of the Ordinance which talk is of assessment of total income and calculation of tax thereon it also deals with the proceedings in this connection and the proceedings for assessment where some income escapes assessment or is under assessed etc. under section 65 of the Ordinance or where the assessment made by the Assessing Officer is erroneous insofar as it is prejudicial to the interest of Revenue, under section 66A of the Ordinance. Thus specific provisions of Self‑Assessment Scheme as made by the C.B.R. under section 59 prevail over other provisions of law relating to assessment as provided in Chapter 7 of the Ordinance. We need not mention that sections 52 and 86 are not,, included in Chapter 7. We therefore, are of the view that notwithstanding that the provisions of the Self‑Assessment Scheme are special enactment pertaining to assessment of income of an assessee, these do not prevail over the proceedings under sections 52/86, of the Ordinance. In this view of the matter we hold that the learned CIT(A) was not justified in cancelling the order as having been barred by time with reference to date of assessment of income of the registered firm on the basis of Self‑Assessment Scheme.

7.???????? The matter does not end here. The observations of the learned CIT(A) so far as these have been made for the assessment years 1997‑98 to 1999‑2000 as quoted supra (para.1) are squarely applicable to the circumstances prevailing in the assessment year 1995‑96. We therefore, vacate the order of the learned CIT(A) and set aside order of the Assessing Officer with the directions that the Assessing Officer may proceed in accordance with law and in the light of the directions which the learned CIT(A) has given in the consolidated order relevant to the assessment year 1997‑98 to 1999‑2000.

3. The learned advocate for the applicant has now mo, ed an application under section 156 of the Ordinance stating that a mistake apparent from the record has crept in while deciding the appeal on 20‑3‑2003 in I.T.A. No. 172/KB of 2002 (Assessment year 1995‑96 insofar as the Tribunal did not consider a case reported as 2003 PTD (Trib.) 1167, where another Bench of the Tribunal has held that an order under section '52 can be passed only during the period for which a notice under section 61 could be issued therefore, there is difference of opinion between the two decisions of the Benches and the earlier decision should be followed by this Tribunal.

4. At the time of hearing of this application the learned A.R. has also referred to a case cited as (1969) 4 Tax 96 CIT v. Hossen Kassem Dada Kyc to state that the Hon'ble Supreme Court of Pakistan has held that where no limitation is prescribed limitation prescribed for similar action in some other section of the statute would prevail. He has also made a reference to another case decided by this Tribunal vide I.T.As. Nos. 445 to 449/KB of 1998‑99 (Assessment years 1992 93 to 1996‑97), dated 19‑5‑1999, a decision made still earlier to the reported case 2003 PTD (Trib.) 1167, wherein it was held that order under section 52/1986 could be passed within time limit of four years as prescribed under section 156 of the Ordinance and as laid down for the purpose of charging additional tax under section 87 by a Full Bench of this Tribunal in a case cited as (1995) 72 Tax 165.

5. We have considered the grounds as well as submissions made by the learned A.R. There is no dispute that cases now being cited by the learned A.R. were never relied upon by any of the parties when the original appeal was decided and the present applicant was duly represented by Mr. M.Z. Ansari, ITP. In this view of the matter, the material now being relied upon does not find place on our records and therefore, by any stretch of imagination it cannot be presumed that there is mistake apparent from the record of the Tribunal as available at the material time of deciding the appeal. We may observe that the original appeal was decided in March, 2003 and the case referred to by the learned A.R. in ground of the application arid cited as 2003 PTD (Trib.) 1167 is appearing in PTD No.4, which is relevant to the month of April, 200.3. If his practice 6f accepting the request for recalling the orders is allowed on the basis of judgment on which a party subsequently lays its hands then there would be no end to the assessment or appellate proceedings.

6. It is trite law that jurisdiction is very limited under section 156 of the Ordinance and can be exercised only when the mistake is floating on the surface. Where an enquiry is required to be made or a reappraisal of the facts or legal provision is necessary to deviate from the earlier finding, then that is not considered to be a mistake floating on the surface or rectifiable under the law. Also where an authority has given conscious finding on an issue, then that authority is not empowered under the law to review its own order on the basis of subsequent evidence. In the instant case, had these orders on which the learned A.R. is now depending, been produced before the Bench at the time of hearing of original appeal, and the Bench had not considered these orders then there would have been a case for rectification under section 156 of the Ordinance. In the present circumstances sub sequential evidence or explanation of law cannot be allowed to be brought on records so as to ID necessitate action under section 156 of the Ordinance. Had these cases been cited by the learned A.R. at the time of hearing of original appeal then we would have either followed anyone of these contradictory decisions of the Tribunal (as these are) or we would have discussed the legal provisions in these perspectives and for holding instant view we would have held these cases to be per incurium.

7. We may state in passing that the case referred to by the learned A.R. as decided by the Hon'ble Supreme Court has no practical relevance to the present case because in that case both the sections involved viz sections 11 and 14 of the Business Profits Tax Act were relevant to assessment and limitation for assessment was being considered, whereas it has been held by us as well as unequivocally in the two cases cited by the learned A.R. himself that order under section 52 of 1986 is not an order of assessment. The two orders of the Tribunal referred to by the learned A.R. are also contradictory among themselves because in I.T.As. Nos.445 to 449 KB of 1998‑99 (Assessment years 1992‑93 to 1996‑97), dated 19‑5‑1999 the Assessing Officer has been allowed to pass order under section 52/86 within four years which is the period prescribed under section 156 of the Ordinance and in the second case reported as 2003 PTD Trib‑1167 it has been held that there being no previous order under section 52/86 the provisions of section 156 were not applicable and the Assessing Officer has been authorized to pass order under section 52/86 within three years in which account books can be called for under section 61 of the Ordinance for the purpose, of making original assessment. Again section 61 refers to assessment and the matter needs to be thrashed as to how provisions of law relevant to assessment income could be stretched to the matters which were not relevant to the orders of assessment also how provisions of section 65 could have then been ignored where under the Assessing. Officer would get eight years for assessment and consequently for issuing notice under section 61 of the Ordinance more. so how could the general provisions for calling of account books at any time under sections 148 and 149 be ignored.. This also requires to be seen as to whether provision of sections 86 and 87 were similar or not and dependence on the reported case (1995) 72 Tax ,165 was proper when the appeals in I.T.As. Nos.445 to 449/KB of 1998‑99 were decided on 19‑5‑1999. All this we would have considered if these cases were cited before us while deciding the original appeal.

8. Since we have held that on the basis of whatever material was on our records as at the time of making decision of the original appeal there is no mistake apparent within restricted jurisdiction available under section 156 of the Ordinance, the present application of the applicant under section 156 of the Ordinance is hereby rejected.

C.M.A./852/Tax (Trib.)??????????????????????????????????????????????????????????????????????? Application rejected.