R. A. No.411/KB of 2003 in ref: M.A. Rec. No. 17/KB, decided on 8th November, 2003. VS R. A. No.411/KB of 2003 in ref: M.A. Rec. No. 17/KB, decided on 8th November, 2003., 2004 PTD-INCOME-TAX-APPELLATE-TRIBUNAL-PAKISTAN 1251 (2003)

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

----S. 80-C(2)(ii)---Tax on income of certain contractors and importers-- Machinery and equipment, import of---Final discharge of tax liability-- Principles---Section 80-C (2)(ii) of the Income Tax Ordinance, 1979 though did not provide any exception from this provision to a commercial importer, yet the entire Scheme of Presumptive Tax Regime is focused on taxing the deemed income which is in the nature of turnover or sales of such goods, which were subsequently sold and generated profits---Machinery and equipments imported and installed by an assessee in his industrial undertaking was a fixed asset and did not generate profit in terms of sales or supplies like any other goods.

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

----S.80-C (2)(ii)---Tax on income of certain contractors and importers-- Goods---Connotation---Word "goods" connotes to a "merchandize" i.e. something which is stock-in-trade or is available for sale by a merchant or a trader.

Black's Law Dictionary ref.

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

----Ss. 80-C(2)(ii) & 50(5)---S.R.O. 593(I)/91, dated 30-6-1991---C. B. R. Circular No. 12 of 1991; dated 30-6-1991---Tax on income of certain contractors and importers---Withholding tax ---Exemption---Principles-- Commissioner of Income Tax though cannot allow exemption to an assessee from the applicability of S.80-C (2)(ii) of the Income Tax Ordinance, 1979 under his powers to grant exemption from withholding tax under S.50(5) of the Income Tax Ordinance, 1979 under various clauses of S.R.O. 593(I)/91, dated 30-6-1991, yet there is a nexus between the two provisions of law---Provisions of S.80-C of the Income Tax Ordinance, 1979 applies only to those cases of importers which are subjected to withholding tax under S.50(5) of the Income Tax Ordinance, 1979---Although classes of persons as 'Provincial Government' and `Local Authority' are exempt from withholding tax under S.50(5) of the Income Tax Ordinance, 1979 vide clauses (i) and (ii) of S.R.O. 593(I)/91, dated 30-6-1991 there is no exception otherwise available to them under S.80-C of the Income Tax Ordinance, 1979.

(1999) 80 Tax 262 ref.

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

----Ss. 80-C (2)(ii) & 50(5)---Tax on income of certain contractors and importers---Application---Principles---While S.80C(1) of the Income Tax Ordinance, 1979 applies to certain classes of persons specified in subsection (2) of S.80-C 7of the Income Tax Ordinance, 1979, it is not applicable to cases where S.50(5) of the Income Tax Ordinance, 1979 was not applicable.

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

----Ss. 80-C (2)(ii) & 50(5)---Tax on income of certain contractors and importers---Import of machinery and equipment for installation in industrial undertaking---Deduction of tax at source---Non-production of certificate of Commissioner of Income Tax---Adjustment of tax deducted at source against other tax liability ---Validity---Commissioner of Income Tax had to certify in respect of the physical installation of the machinery, which was a stage next to the import---Commissioner of Income Tax had also to certify about the ownership of the industrial undertaking by the person importing plant and machinery etc.--If such certificate was not produced, and deduction of tax under S.50(5) of the Income Tax Ordinance, 1979 had been made by the Collector of Customs at import stage it did not imply that provision of S.80-C of the Income Tax Ordinance, 1979 would apply in such cases automatically ---Non production of a certificate from Commissioner of Income Tax could be an irregularity which could be removed even after import of such machinery etc. and the assessee would suffer withholding tax at import stage under S.50(5) of the Income Tax Ordinance, 1979 for clearance of the machinery, he would not be subjected to the application of S. 80-C of the Income Tax Ordinance, 1979---Assessee, in such an event would get the credit of tax deducted under S.50(5) of the Income Tax Ordinance, 1979 at import stage which would be adjusted against his other tax liability for the relevant year.

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

----Ss. 136(1) & 80-C---Reference to High Court---Question was whether Appellate Tribunal was justified to hold that plant and machinery imported by the assessee-company for its own use would not be liable to presumptive taxation, whereas the law restricted the concession to import of plant and machinery by `industrial undertakings' only---Held, question framed by the Department had not arisen out of the order of Appellate Tribunal as the Appellate Tribunal had nowhere given any decision on the ownership of an industrial undertaking by the assessee, which fact had not been otherwise disputed by the Department---Question was on a point of fact, which was ascertainable from the record of the assessee as well as the physical verification about the existence of industrial undertaking owned by the assessee-company as well as installation of imported machinery and equipment therein---Appellate Tribunal in circumstances set aside the order of Inspecting Additional Commissioner passed under S.66-A of the Income Tax Ordinance, 1979---Reference application was dismissed by the Appellate Tribunal being devoid of merits.

(g) Income Tax Ordinance (XXXI of 1979)---

----Ss. 136(1), 50(5) & 80-C---Reference to High Court---Question whether Appellate Tribunal was justified in directing that tax deducted under S.50(5) of the Income Tax Ordinance, 1979 may be adjusted against the tax liability of subsequent years whereas subsection (3) of section 80-C of the Income Tax Ordinance, 1979 did not authorize any allowance, deduction, or refund against the presumptive income---Held, question about adjustment of tax at source against subsequent years liability of the assessee was not the issue before Appellate Tribunal in departmental rectification application---Such point would arise if the Appellate Tribunal had held that the import of machinery fell under Presumptive Tax Regime---Reference application was dismissed by the Appellate Tribunal being devoid of merits.

(h) Income Tax Ordinance (XXXI of 1979)-----

----S. 136(1)---Reference to High Court---Filing of reference application after 90 days from the date of order---Validity---Reference application filed by the Department was barred by time, besides being devoid of merits the same was dismissed by the Appellate Tribunal.

(i) Words and phrases---

--------"Goods"---Connotation.

Black's Law Dictionary ref.

Sajjad Ahmed, D.R. for Applicant.

Saifuddin Adeeb, A.R. for Respondent.

Date of hearing: 8th November, 2003.

ORDER

AGHA KAFEEL BARIK (ACCOUNTANT MEMBER).----1. The department has filed this application requiring us to refer the following questions of law as arising out of the order of the Tribunal in M.A. (Rect.) No. 17/KB of 2003 (in I.T.A. No. 262/KB of 2003) for the assessment year 1997-98, dated 12-4-2003 to the Honourable High Court of Sindh under section 136(1) of the Income Tax Ordinance, 1979:

"(I)Whether on the facts and in circumstances of the case, Hon'ble ITAT was justified to hold that plant and machinery imported by the assessee-company for its own use would not be liable to presumptive taxation whereas the law restricts the concession to import of plant and machinery by "industrial undertakings" only?

(II)Whether on facts and in circumstances of the case, Hon'ble ITAT was justified in directing that the tax deducted under section 50(5) of the Income Tax Ordinance, 1979 may be adjusted against the tax liability of subsequent years whereas subsection (3) of section 80-C does not authorize any allowance deduction, or refund against the presumptive income?

2. The facts of the case as narrated in the statement filed by the department are as under:--

(i)The assessee is a public limited company and is engaged in rendering services relating to data 'communication and related services thereto. The assessment for the charge year was completed under section 62 of the Income Tax Ordinance, 1979 at Nil income as the assessee has not carried out any business activity. The assessee had only capitalized its expenses. The DCIT was also allowed credit of tax deducted at import stage for import of machinery which was to be used for providing data communication services etc.

(ii)Subsequently, the IAC of the Income Tax Range II, Cos. II, Karachi vide its Order No. 9, dated 16-2-2001 under section 66-A of the Income Tax Ordinance, 1979 cancelled the order passed under section 62 with the direction to treat the tax deducted under section 50(5) at import stage as full and final discharge of assessee's presumptive tax liability under section 80-C of the Income Tax Ordinance, 1979 as the assessee was not an industrial undertaking and had not imported the raw material for its own manufacturing.

(iii)The assessee filed appeal before the Tribunal agitating the cancellation of assessment order under section 66-A of the Income Tax Ordinance, 1979 in which withholding tax deducted under section 50(5) on import of machinery was held to be full and final discharge of assessee's presumptive tax liability under section 80-C of the Income Tax Ordinance, 1979.

(iv)The ITAT Karachi vide its Order No. I.T.A. No.262/KB DS/2000-2001 (Assessment Year 1997-98), dated 5-1-2002 while setting aside the order under section 66-A directed the department that .the assessee may be accorded a fresh opportunity to prove that the machinery and equipment was imported for its own use and that it was actually installed and was put in operation in subsequent year. Therefore, the tax already deducted under section 50(5) at the import stage of the said machinery may be adjusted against the tax demand of the assessee company in subsequent years.

3. In its order in I.T.A. No.262/KB of 2001, dated 5-1-2002 the Tribunal has held that if the assessee proves that the machinery and equipment was imported by the assessee for its own use and that it was actually installed and put in operation in subsequent years, no tax should be levied on such imported machinery under Presumptive Tax Regime under section 80-C and that tax already deducted under section 50(5) at import stage on such machinery may be adjusted against tax demand against the assessee in subsequent years.

4. The learned D.R. argued that this order of the Tribunal is not in accordance with the scheme of Presumptive Tax Regime and section 80-C wherein there is no exception to any plant, machinery and equipment, even if imported by an assessee for its own use. The learned D.R. further argued that there was no exemption to import of plant, machinery and equipment under section 80-C, even if it is imported for its own use by an assessee an industrial undertaking. He referred to clause (ii) of subsection (2) of section 80-C, in this regard. Under this clause all 'goods imported' are liable to tax under section 80C, and the only exception is available to "goods imported by an industrial undertaking as raw material for its own consumption". The said provision of law is reproduced below:--

Section 80-C(2)

"(ii) the amount as computed for the purpose of collection of tax under subsection (5) of section 50 in respect of goods imported, not being goods imported by an industrial undertaking as raw material for its own consumption:"

5. The learned D.R. argued that since the machinery and equipment were not raw material imported by an industrial undertaking for installation and for its own use, the assessee had no exception from the ambit of the' said provision of law. He further argued that initially the IAC has reopened the assessment order passed under section 62, vide his order, dated 16-2-2001, after confronting the assessee that the "goods" imported had already suffered tax at Rs.1,677 Million under section 50(5) at the import stage under section 50(5) and since these imports do not constitute raw material for its own use, therefore, the provision of section 80-C squarely applies to the said imports. In its reply, the assessee simply submitted that the assessee is an industrial undertaking but he did not submit any explanation as to how the machinery imported by an industrial undertaking was exempt from Presumptive Tax Regime under section 80-C(2)(ii). Accordingly, the IAC made elaborate discussion upon the relevant provisions of law, including section 80-C(2)(ii) and C.B.R. Circulars regarding exemption from withholding of tax under section 50(5) at the import stage, and held that the provisions of section 80-C are distinct from the C.B.R Notifications for exemption from deduction of tax. The learned D.R. referred to C.B.R. Notification No.S.R.O. 593(I)/91, dated 30-6-1991, which provides for exemption from application of section 50(5) to various classes of person, and includes:

"(iv)persons who imported plant, machinery, fixtures, fittings or any other equipment for purposes of setting up' an industrial undertaking including hotels-owned by such persons or for installation in an existing industrial undertaking (including `hotels) owned by them and certificate to that effect from the Commissioner of Income Tax in respect of such plant, machinery, fixtures, fittings, or equipment is produced."

6. Since in the opinion of the IAC the assessee had no exception from the chargibility of section 80-C(2)(ii), he passed an order under section 66-A canceling the assessment order passed under section 62, and directing the DOT to frame fresh assessment order taking into account the relevant provisions of section 80-C.

7. The learned counsel of the assessee, at the very outset challenged the admissibility of the departmental reference application as in his view it was barred by time, as the original order in I.T.A. No. 262/KB was passed on 5-1-2002 and reference application has been filed on 2-8-2003. He argued that it will be wrong to perceive that the questions arise out of the order of the, Tribunal in M.A. (Rect.) No. 17/KB/2003, dated 12-4-2003. He pointed out that any reference application should have been directed to the main order of the Tribunal and not with regard to any order disposing of subsequent departmental rectification application.

8. At this stage the record of miscellaneous application filed by the department was perused and it is noted that the department had raised objections to the order of the Tribunal, dated 5-1-2002 in I.T.A. No.262/KB of 2001 as under:

"That the attention of the learned ITAT is invited to the 'following facts:--

(a)The assessee's accounts neither indicate any process of further manufacturing of the imported goods nor reflect any expenditure on process of furthering the imported goods.

(b)That without prejudice to above, the assessee's accounts make it Absolutely clear that these are purchases for the purpose of sales and supplies and thus fall within the ambit of the Presumptive Tax Regime.

9. The learned counsel for the appellant further argued that basically the questions framed by the department do not arise out of the order of the Tribunal. He argued that at the initial stage of assessment under section 62 as well as at the stage of framing order under section 66-A the Department had not challenged the status of the company as an industrial undertaking. He argued that as apparent from the Memorandum and Article of Association of the Company the assessee company has set up a communication I.T. (Information Technology) Net Work which is an industrial undertaking as recognized by the Government of Pakistan, vide Notification No. 3(2)/97-I&V-IV, dated 5th March 1997 in which it has been declared that "a computer software Information Technology (I.T.) is an industry". He also submitted a list of I.T. equipments which have been approved by the Ministry for this purpose. Regarding the nature of business the learned A.R. submitted that with the help of computers and various equipments imported by the assessee that it has set up a net work to provide I.T. based services to its clients and it has wrongly been viewed by the IAC that the said machinery was imported for sale or commercial use by the assessee. He pointed out that it was misconceived by the IAC that the machinery in any way constitutes commercial imports which fall under the ambit of Presumptive Tax Regime.

10. The Tribunal in its order in M.A. (Rectification) No.12/KB of 2003, dated 12-4-2003 recorded the arguments of the learned D.R. that since there was no indication in the accounts that there was any process of manufacturing using the; imported goods as raw material nor did it reflect any expenditure on process of furthering the imported goods and that according to the department the imports were made for the purpose of sale and supply, or in other words these were commercial in nature which fall under the ambit of Presumptive Tax Regime: On the other hand, the learned A.R. for the assessee had rebutted the arguments of the learned D.R. stating that the machinery and equipment was imported be the assessee company for its own use and was actually installed during the income; year relevant to assessment year 1997-98 but no industrial production was commenced in the said year. Hence no expenses related to manufacturing were incurred or claimed in the accounts and that actual industrial/commercial production started during the relevant to assessment year 1999-2000. Thus the only dispute before while disposing, of rectification application was that the department treated the imports as goods for the purpose of sale, whereas the assessee insisted and tried to prove that this was machinery and equipment imported for installation and use for production purpose. As such the Tribunal maintained its earlier order, dated 5-1-2002 with direct n to make compliance on the directions issued earlier vide earlier order dated 5-1-2002.

11. The learned A.R. also submitted the following arguments in rebuttal of the argument of the learned D.R. that there is no exception from Presumptive Tax Regime to the import of machinery or equipment under section 80-C(2)(ii) and that C.B.R. Notification S.R.O. 592(I)/91, dated 30-6-1991 has entirely different scope which is exemption from withholding tax under section 50(5) at import stage only available to various classes of persons, including those who import plant and machinery for installation.

(i) It was argued by the learned A.R. that the provisions of Presumptive Tax Regime Vide 80-C (2)(ii) apply to a commercial importer and not to an importer who imports machinery for installation and for its own use as in the present case.

(ii) It was also argued that the entire Presumptive Tax Regime 'Scheme converges on. "goods" and that plant and machinery are not "goods". He cited a decision of the Honourable Lahore High Court reported as 1999 PTD 4028 in W. P. No. 12041 of 1999 decided on 9-8-1999 in the case of Kawkther Grain (Pvt.) Ltd. v. DCIT Gujranwala in this case the assessee was treated as assessee in default under section 52 for non-deduction of tax under section 50(4) on sale of plant and machinery. It was held that the "goods" as used in section 50(4) do not include immovable property and that if the machinery is not `goods' after installation it cannot be `goods' before installation. The learned High Court held as under:--

"Income Tax Ordinance, 1979 (XXXI of 1979), sections 52 and 50(4)---Failure to deduct tax---Deduction of advance tax-- Notice---Validity and legality---Sale of machinery---Petitioner purchased rice processing unit---Simply sale of factory land, building, and machinery installed therein---Assessing Officer issued notice under section 52 for payment of total amount of tax---Whether the provisions of section 50(4) were attracted to the transaction evidencing the sale of land, building, fixed plant and machinery sold as part of the factory---Held, no---Whether holding the petitioner as an assessee in default under section 52 by the Assessing Officer was totally beyond his jurisdiction competence---Held, yes---Literal meaning of words, goods-- Cardinal principle---None availability of definition of word, goods in the Ordinance---Whether it is an accepted proposition of law that the words used in a statute if not defined therein, should be assigned their ordinary dictionary meaning---Held, yes---Word `goods' meaning of:---

(iii)The learned counsel also argued that the issue of assessee's industrial undertaking, raised in this reference application by the Department was never an issue either in the assessment proceedings under section 62 or during the proceedings initiated by the IAC under section 66-A of the Income Tax Ordinance, 1979. . He also contended that even in the miscellaneous application for rectification filed by the Department which was dismissed by the Tribunal vide its order, dated 12-4-2003 the attention of the Tribunal was invited to only two points, which were (1) No expenditure on claimed by the assessee on processing and (2) departmental view that the imports/purchases were made for sale and supplies. Hence any issue cannot be raised at this stage. The learned A.R. also argued that the Zonal CIT has powers to grant exemption to import of machinery and equipment from withholding tax import stage under section 50(5) vide SI.O. 593(1)/91, dated 30-6-1991, in exercise of powers conferred upon him by the C.13.R.- The said exemption allowed by the, Zonal CIT in accordance with the law, which can be termed as machinery law; whereas section 80 on Presumptive Tax Regime is substantive law and that the exemptions available under the C.B.R. S.R.O. 593(I)/91 are very much in correlation with the provisions of section 80-C and not to any way in contradiction to it.

(iv)The learned counsel further argued that if the machinery and equipments imported by an assessee/industrial undertaking are to be taxed under section 80-C, the C.B.R. Circular No. 12 of 1991 cannot be implemented as there is no situation like this visualized in that circular.

(v)The learned counsel further argued that although there was no clear exemption on import of machinery for installation in section 80-C(2)(ii) of the Income Tax Ordinance, 1979, yet there was no tax to be levied on such machinery which constitutes capital asset of the assessee: He argued that it was never the intention of the Legislature to tax machinery and equipment under Presumptive Tax Regime and that is why exemption was available from withholding tax at the import stage to certain classes of persons including, imports of machinery for installation. He argued, that in the same manner a Provincial Government clause (i) and a Local Authority clause (ii) and certain foreign companies clause (iii) have been allowed exemption from withholding -tax under section 50(5) under the said S.R.O. And although there is no specific provision of exception otherwise provided under section 80-C to these classes of persons yet they are not taxes under section 80-C by the department. As such he argued that if by mistake the Customs Authorities deduct tax under section 50(5) on goods imported by these classes of persons, it would not automatically subject them to tax under section 80-C, merely because there is no clear exemption available to these classes of persons under section 80-C (2)(ii).

(vi)The learned A.R. also argued that realizing some loop pools in the provisions of law under repealed income Tax Ordinance, 1979 and also in Income Tax Ordinance, 2001, the Legislature has now provided exemption from Presumptive Tax Regime to import of machinery for its own installation by an assessee by an amendment by Finance Act, 2003, inserted in subsection (7) of section 148 of the Income Tax Ordinance, 2001 and now the amended section 148(7) reads as under:--

Section 148(7).---Except in the case of an industrial undertaking importing goods as raw materials, plant, machinery and equipment, for its own use, the tax collected under this section shall be a final tax on the income of the importer arising from the imports subject to subsection (1).

Thus he argued that it is a curative law after the Legislatures realized that such a provision was not available in the repealed Income Tax Ordinance, 1979.

(vii)The learned A.R. also argued that even for assessment year 1998-99 the IAC issued a show-cause notice under section 66-A on the basis of same facts of the case i.e. import of machinery and deduction of tax under section 50(5). But he did not pass any order under section 66-A as apparently it was a weak case. The learned D.R. however, could not rebut his argument on this issue with the reason that had no record available for 1998-99 to that effect.

12. After hearing both the sides, our findings are as under:--

(a)Although section 80-C(2)(ii) does not provide any except from said provision to a commercial importer as claimed by the learned A.R., for the assessee, yet the entire Scheme of Presumptive Tax Regime is focused on taxing the deemed income which is in the nature of turnover or sales of such goods, which are subsequently sold and generate profits. Apparently machinery and equipments imported and installed by an assessee in his industries undertaking is a fixed asset and does not generate profit in terms of sales or supplies like any other goods.

(b)The word "goods" also connotes to a 'merchandize" i.e something which is stock in trade or in available for sale by .. merchant or a trader. The definition of "goods" in Black's Law Dictionary is given as under:--

"Items of merchandise, supplies, raw materials, or finished goods---Sometimes the meaning of goods is extended to include all tangible items, as in the phrase" goods and services".

(c)Although the Zonal Commissioner cannot allow exemption to an assessee from the applicability of section 80-C(2)(ii) under his power to grant exemption from withholding tax under section 50(5) under various clauses of S.R.O. 593(I)/91, dated 30-6-1991, yet there is a nexus between the two provisions ok law. We cannot ignore the fact that provision of section 80-C applies only to those cases of importers which are subjected to withholding tax under section. 50(5) and as pointed out by the learned A.R. although such classes of persons as `Provincial Government' and `Local Authority' are exempt from withholding tax under section 50(5) vide clauses (i) and (ii) of S.R.O. 593(I)/91 there is no exception otherwise available to them under section 80C.

(d)Section 50(5) provides for collection of advance tax by the Collector of Customs. However, under the proviso to section 50(5), the C.B.R. has exempted certain classes of persons from the applicability of section 50(5) i.e. withholding of tax at import stage, vide S.R.O. 593(I)/91, dated 30-6-1991. In section 80-C ".where any amount referred to in subsection (2) is received by or accrues or arises or is deemed to accrue or arise to any person the whole of such amount shall be deemed income of the said person." Under subsection (2)(ii) the chargeability of section 80-C(1) is extended to, "the amount as computed for the, purpose of collection of tax under section 50(5) in respect of goods imported." Here exception has been given to goods imported by an industrial undertaking as raw material for its own consumption.

(e)When both the provisions of law are read together it is abundantly clear that while section 80-C(1) applies to certain classes of persons specified in subsection (2) of section 80-C, it does not apply to cases where section 50(5) is not applicable. As discussed above, the C.B.R. has given exemption to certain classes of persons from applicability of section 50(5) including a Provincial Government; a Local Authority and certain foreign companies. However, exemption has also been allowed to certain classes of persons vide clauses (iv), (vi) and (ix) with the condition that they produce a certificate from the Commissioner of Income Tax. In clause (iv) the certificate from the Commissioner is to be produced to the effect that such plant, machinery, fixtures., fittings or, equipment has been imported for installation by an existing industrial undertaking owned by such persons. This, clearly shows that the CIT has to certify in respect of the physical installation of. the machinery, which is a stage next to the, import. Ire has also. to certify about the ownership of the industrial undertaking by the person importing plant and machinery etc. If such certificate is not produced, and deduction of tax under section 50(5) has been made by the Collector of Customs at import stage it does not imply, that provision of section 80-C would, apply in such cases automatically. Non-production of a certificate from CIT can be an irregularity which can be removed even after import of such machinery etc. and the assessee would suffer withholding tax at import stage under section 50(5) for clearance of the machinery; be would not be subjected to the application of section 80-C. In such, an event he will get the credit of tax deducted under section 50(5) at import stage which would be adjusted against his other tax liability for the relevant year.

13. In view of the above discussion we are of the opinion that the questions framed by the department in the present reference application do not arise out of the order of the Tribunal in M.A. (Rect.) No. 17/KB of 2003, dated 12-4-2003, as in the said order the Tribunal has no where given any decision about the ownership of an industrial undertaking by the assessee, which fact has not been otherwise disputed by the department till such time. Besides, the first question is a point of fact, which is ascertainable from the record of the assessee as well as the physical verification about the existence of industrial undertaking owned by the assessee company as well as installation of imported machinery and equipment therein. For this very purpose the Tribunal set aside the order of the IAC passed under section 66-A. Second question about' adjustment of tax at source against subsequent years' liability or the assessee was also not the issue before us in departmental rectification application as reproduced above. This point would arise if the Tribunal has held that the import of machinery falls under Presumptive Tax Regime. Besides, this question, if at, would arise out of the order of the Tribunal, dated 5-1-2002 and the reference application in that order should have been filed within 90 days under section 136(1). But, as rightly pointed by the learned A.R. for the assessee, the reference application filed by the department is hopelessly barred by time, besides being devoid of merits. Accordingly, the same in hereby dismissed.

C.M.A./25/Tax(Trib.)Reference application dismissed.