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

----S. 156(3)---Rectification of mistake---Assessee alleged that main applications for rectification of mistakes were filed on 27-7-2000 and the financial year in which these applications were filed ended on 30-6-2002 but no order under S.156 of the Income Tax Ordinance, 1979 was passed and the mistakes would be deemed to have been rectified and all the provisions of Income Tax Ordinance, 1979 shall have effect accordingly---Validity---Applications, for giving deeming, effect to the rectification of mistakes sought to be rectified under the provision of S.156(3) of the Income Tax Ordinance, 1979 was refused by the Appellate Tribunal by relying on the judgment reported as 2003 PTD (Trib.) 1708.

2003 PTD (Trib.) 1708 rel.

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

----S. 156---Rectification of mistake---Scope---Income Tax `Authority' or the `Tribunal' could amend any order passed by it so as to rectify any mistake apparent from the record viz. an error in the order sought to be rectified must be apparent on the face of record.

1993 PTD (Trib.) 964 rel.

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

----S. 156---Rectification of mistake---Scope---Mistake should be apparent on the face of the record and may be seen floating on the surface of the record and it should be patent and obvious on the record-- Power to rectify mistakes under the income-tax law or wealth tax law could not be stretched to the extent of review of an order or to the extent of authorizing the Tribunal or the Authority passing the order to sit in judgment as an Appellate Court against its own order.

1992 SCMR 689 = 1992 PTD 570 rel.

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

---S. 156---Rectification of mistake---Review---Scope---`Review' of an order/judgment has a different connotation under the administration of civil and criminal justice than that of `rectification' of an order under the tax laws.  

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

----S. 156---Income Tax Ordinance (XLIX of 2001), S. 221---Wealth Tax Act (XV of 1963), S.35---Civil Procedure Code (V of 1908), S.152---Scope---Rectification of mistake---Powers of rectification of mistake under S.156 of the Income Tax Ordinance, 1979 (S. 221 of the new Income Tax Ordinance, 2001) or S.35-of the Wealth Tax Act, 1963, to a certain extent could be equated with the power of amendment of judgments, decrees or orders as provided under S.152 of the Code of Civil Procedure, 1908, which basically hinged on a maxim "Actus curiae neminem gravabit" (an act of the Court shall prejudice no one)---Under the provisions of S.152 of the Code of Civil Procedure, clerical or arithmetical mistakes in judgments, decrees or orders or error arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.

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

----S. 156---Wealth Tax Act (XV of 1963), S. 35---Rectification of mistake---Scope---Rectification as provided under S.156 of the Income Tax Ordinance, 1979 or S.35 of the Wealth Tax Act, 1963 has a limited scope only to the extent of rectifying any mistake in the order by the Authority itself who passed the order and the mistake sought to be rectified must be a mistake apparent from record, leaving no room for any argument on any legal issue which had already been dealt with in the main order by the forum concerned for questioning the same for its resolution in a different legal perspective suitable to the applicant-- Tribunal or the forum concerned while dealing with a rectification application could not transgress its authority or assume jurisdiction to sit in judgment on its own order.

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

----S. 156---Constitution of Pakistan (1973), Arts.4, 25 & 264---C.B.R. Circular No.15 of 1980, dated 26-6-1980---C.B.R. Letter C. No.1 (48) IT-1/79, dated 17-2-1981-- Rectification of mistake ---Scope-- Application for rectification of Appellate Tribunal's order almost on the same grounds/arguments which were made at the time of hearing of main appeal---Validity---While seeing relevant parts of the Tribunal's order in the context of averments made in the rectification application, assessee in fact sought reappraisal of the factual as well as legal issues like that of time of limitation for assessment under S.66A of the Income Tax Ordinance, 1979, appointment of Special Officer under S.4 of the Income Tax Ordinance, 1979, acceptance of return under para. 4(ii) of Self-Assessment Scheme, validity of the order passed by a Special Officer etc. and a re-decision thereon through rectification application, would amount to enlarging the scope of provisions of S.156 of the Income Tax Ordinance, 1979 to the extent of sitting in judgment as an appellate forum---No mistake apparent from record liable to be rectified appearing in the case, application for rectification was rejected by the Appellate Tribunal.

PLD 1957 (SC Ind.) 448; PLD 1974 Lah. 458; PLD 1965 (W.P.) Kar. 69; 1981 SCMR 267; PLD 1982 Lah. 109; 2000 PTD 2407; 1991 PTD 217; 1993 SCMR 29 and MA(R) No.23/IB of 2000-2001 ref.

1993 PTD (Trib.) 964 and 1992 SCMR 689 = 1992 PTD 570 rel.

Mir Ahmed Ali for Applicant.

Abdul Jaleel, D.R. for Respondent.

Date of hearing: 7th June, 2003.

ORDER

The applicant/assessee through these miscellaneous applications has sought rectification of the order, dated 30-5-2000 passed by the Tribunal in ITA Nos.1139/IB of 1997-98; ITA No.255/IB of 1995-96; ITA No. 269/IB of 1995-96; ITA No. 486/IB of 1998-99; and ITA No. 1280/IB of 1998-99 for the assessment years 1993-94 to 1995-96 on the appeals of the Department and of the assessee.

2. For the sake of convenience, we will narrate the averments of the applicant assessee assessment year-wise.

Assessment year 1993-94.

3. The applicant/assessee, while reproducing the relevant parts of the order of the Tribunal and also quoting various case-law alongwith the extracts from the said case-law, has alleged in the manner as under:--

"(1) That above referred appeal, filed by the assessee, is against order of learned Appellate Additional Commissioner Rawalpindi, which was decided vide A.O. No.198, dated 1-4-1998. This Honourable Bench fixed said appeal alongwith other cross-appeals for the assessment years 1994-95 and 1995 96 on various occasions. Finally on 20-4-2000 this august Bench after considering submissions, not at all rebutted by the Departmental Representative, directed AR of your applicant to submit arguments made orally on limitation and illegality of assessment finalized by the Special Officer in writing alongwith photo-copies of decisions cited at bar to arrive at conclusion in a better way. Thus, all appeals in the instant case were finally fixed for hearing on 18-5-2000 and accordingly it was heard as fixed. The august Division Bench thereafter passed a combined order on 30-5-2000 and was communicated to your applicant on 14-6-2000.

(2) That in addition to normal points agitated two preliminary objections, raised in said appeal, are as under:--

(A) Limitation of assessment wherein assessment stood cancelled by Inspecting Additional Commissioner of Income Tax and Wealth Tax under section 66A of the Ordinance.

(B) Appointment of Special Officer under section 4(2) by the Regional Commissioner of Income Tax and Wealth Tax as well as the Authority of said Special Officer.

(3) That on receipt of order, your applicant is astonished to note that the first preliminary objection in appeal was brushed aside under Para. No.4 of the order as under:--

4. (Para. 4 of the order of the Tribunal has been reproduced).

("We have ------------------- under section 66(1) of the Ordinance").

(4) That as aforesaid appeal is decided without considering oral as well written submissions made and the copies of decisions provided on the principles of law on limitation as enunciated by superior judicial authorities on the following points.

(5) That in the judgment submissions of AR were not appreciated wherein it was categorically submitted that section 66 was originally enacted in the Ordinance in 1979 whereas, section 66A was inducted by Finance Act 1980 in this respect, attention of the august Bench was also brought to Circular Letter C. No.1 (48) IT-1/79, dated 17-2-1981, reproduced in S.A. Salam's Book at page 312. It was argued that no corresponding amendments were made in sections 64 or 66, therefore, the limitations as provided under these provisions cannot be applied in instant case. In this regard principle of law enunciated by the superior judicial authorities were brought to the notice of the august Bench on legal issues of limitation as under:--

In addition to the above, attention of august Bench was also drawn towards Page No.291 of S.A. Salam's Book "Complete Income Tax Law 7th Edition" wherein it is said that Board after considering all these aspects, issued a Circular Letter C. No.1(3) DT 14/91, dated 20-5-1991 wherein it, is belaboured that:

"Barring some cases, annulled assessment can also be taken up if not hit by limitation."

(6) That above all and in order to save the law and to assist Court, it was very humbly submitted that in a such situation it is declared that assessment shall be finalized as provided under section 64 of the Income Tax Ordinance, 1979.

(7) That as regards second issue, the august Bench in the last leg of Paragraph No.5 of the order, without considering essence of statutory provisions in true letter and spirit of said provision and principles of law, on appointment of authority as well as vested rights of authority under statutory provisions, as enunciated by the superior judicial authorities.

(Relevant part of para. 5 of the order of the Tribunal has been reproduced here).

("Once such an --------------- therefore, untenable and rejected".)

(8) That here again the august Bench has twisted the statutory provisions of the Ordinance and the basic concept of inserting the authority known as "Special Officer" as highlighted by Board itself while explaining amendments in Para. 4 of Circular No.15 of 1980, dated 26-6-1980, that:--

"4. Special Officer-Section 2(25)-The institution of Special Officer which was existed under the repealed Act has been revived with the same functions as were assigned to him under the said Act.

(9) That by surpassing judicial norms and by overlooking averment made tantamount to condemn respondent unheard. This act can also easily be construed violation of fundamental rights of applicant granted under Articles 4 and 25 as well as contrary to the spirit as provided under Article 264 of the Constitution of the Islamic Republic of Pakistan, 1973.

(10) That at the time of hearing, it was very humbly and whole heartedly submitted that both the issues raised are very important, legal in totality and bears significance on the point of law as such, it should have been decided at length with full devotion and considering the statutory provisions and the principles of law as laid down by the superior judicial authority."

4. Lastly, the assessee made a prayer to the effect that these were the mistakes of law, glaring and obvious, going to the roots of the case and by referring a recent decision of the Honourable Karachi High Court reported as 2000 PTD 2407, requested that the order under reference may be rectified/modified as provided under the statutory provisions in the light of decisions of the superior judicial authorities as well as the orders of the Tribunal or any other relief which the Tribunal may think fit.

Assessment year 1994-95

5. For this year, we need not to repeat the averments as raised at serial No.1 of the application because the same averments made in the application for the assessment year 1993-94 have already been reproduced in para. 3 (at Serial No.1) above for the said year. Thereafter, the assessee/applicant has alleged in the remaining grounds in the manner as under:--

"1(2) That three main issues raised in the said appeal are:---

(A) Assessment and limitation of return qualifies for acceptance under Self-Assessment Scheme and said return selected under Para. 4(i) of the Scheme.

(B) Legality of assessment orders passed with the approval of Inspecting Additional Commissioner the order of the Special Officer is valid under the facts and circumstances of the case.

(C) Appointment of Special Officer under section 4(2) by the Regional Commissioner of Income Tax and Wealth Tax as well as the Authority of said Special Officer.

"2(3) That on receipt of order, the applicant is astonished to note that submissions made on legality of order. Approval of IAC for Draft Assessment order and authority of Special Officer as well as averments made and precedents submitted before this august Tribunal at the time of hearing of instant appeals have totally been overlooked and in this way the applicant has been condemned unheard which is against the principle of natural justice, judicial ethics as well as Tribunal's own rules.

3(4) That by surpassing judicial norms and by overlooking averment made tantamount to condemn respondent unheard. This act can also easily be construed violation of fundamental rights of applicant granted under Articles 4 and 25 of the Constitution of the Islamic Republic of Pakistan, 1973.

4(5) That as regard first point raised, the august Bench in Para. No. 10 of order summarized that:

(The relevant part in para. 10 of the order of the Tribunal has been reproduced here).

("Selection out of --------------in section 59(4) of the Ordinance.")

5(6) That there might have been some communication gap between the Bar and the Bench, It was not at all correct that the cases selected through computer ballot and the cases selected otherwise are at par under statutory provisions. It is purely a mistake of law and cannot be denied.

6(7) That as regards second issue, the august Bench in its order vide Para. No.8, treated as an internal administrative matter contrary to the principle of law enunciated by High Court and is affirmed by Supreme Court of Pakistan, as under:--

(Relevant para. 8 of the order of the Tribunal has been reproduced here).

("We have considered the facts -----------therefore, overruled.")

7(8) That an excerpt from decision reported as 1991 PTD 217 (H.C. Kar) as affirmed by Honourable Supreme Court of Pakistan in its decision cited as 1993 SCMR 29, it is fortified that under the statutory -provisions, approval can be obtained for addition under section 13, reopening under section 65 and while imposing penalty under section 108 only. Other than as aforesaid, all the approval in any shape or in any matter is construed an overstepping on judicial function by an executive authority whether for any grammatical in nature or otherwise.

8(9) That as regards last legal issue, the Tribunal order is:--

(the relevant part in para. 5 of, the order of the Tribunal has been reproduced here).

("once such an income tax authority: --------- Therefore, untenable and rejected.")

9(9) That here again the august Bench has twisted the statutory provisions of the Ordinance and the basic concept of inserting the authority known as "Special Officer" as highlighted by Board itself while explaining amendments in Para. 4 of Circular No. 15 of 1980, dated 26-6-1980, that:-

"4. Special Officer-Section 2(25)-The institution of Special Officer which was existed under the repealed Act has been revived with the same functions as were assigned to him under the said Act."

10(9) That by surpassing judicial norms and by overlooking averment made tantamount to condemn respondent unheard. This act can also easily be construed violation of fundamental rights of applicant granted under Articles 4 and 25 as well as contrary to the spirit as provided under Article 264 of the Constitution of the Islamic Republic of Pakistan, 1973.

10(10) That at the time of hearing, it was very humbly and whole heartedly submitted that both the issues raised are very important, legal in totality, and bear significance on the point of law as such, it should have been decided at length with full devotion and considering the statutory provisions and the principles of law as laid down by the superior judicial authority. "

6. Finally, the applicant/assessee prayed for rectification of the mistakes as pointed out in the application while placing reliance on the case law of Honourable Karachi High Court reported as 2000 PTD 2407, or any other relief which the Tribunal may think fit.

Assessment year 1995-96

7. In respect of assessment year 1995-96 also, the applicant/assessee has repeated the similar averments in the grounds at Serial No. 1 and 2 as for the assessment years 1993-94 and 1994-95 reproduced above and as such need not to be stated here. Thereafter, in the remaining grounds, the assessee has averred in the manner as follows:

"1.(3) That at the time of hearing in addition to normal grounds as a preliminary, objections was also raised in said appeal, are as under:--

A. The hypocrisy towards estimation of sales negating history but application of Gross Profits as per history.

B. Appointment of Special Officer under section 4(2) by the Regional Commissioner of Income Tax and Wealth Tax as well as the authority of said Special Officer.

2(4) That brief fact of the case is that the learned Assessing Officer discarding declared sales estimates sales at 2,750,000 for the reasons recorded that the shop is situated in a big market and other shops in the similar vicinity showing much more yield and so on so vide order, dated 29-6-1998 against declared at 1,001,500 in presence of an appellant order No.722, dated 18-7-1995 for the year 1994-95 wherein sales estimated at 2,500,000 was reduced to 1,500,000 only for the reason that Department is in appeal before Tribunal.

3(5) That on the other hand applied Gross profit as per history of the case because, according to the learned officer history of the case is the best guide and application of lesser Gross profit in parallel cases cannot be applied in a case where history of higher Gross profit is available.

4(6) That against facts of the case in these cross appeals, the august Bench dried assessee's tears in para. 14 having affirmed reduction of Sales. Contrary guarding departmental interest rejected its ground on deletion of salary expenses by the learned Appellant Authority. Thus, by this order on the facts, the august Bench has satisfied both your applicant as well as the Department.

5(7) 'that it is to be noted that as regard the preliminary legal issue, the august Bench discarded vide para. 5 of the order as highlighted in other application for the years 1993-94 and 1995-1996.

6(8) That by surpassing judicial norms and by overlooking averment made tantamount to condemn respondent unheard. This act can also easily be construed violation of fundamental rights of applicant granted under Articles 4 and 25 as well as contrary to the spirit as provided under Article 264 of the Constitution of the Islamic Republic of Pakistan, 1973.

7(9) That at the time of hearing, it was very humbly and whole heartedly submitted that both the issues raised are very important, legal in totality and bear significance on the point of law as such, it should have been decided at length with full devotion and considering the statutory provision and the principles of law as laid down by the superior judicial authority."

8. In view of above, again for this year, the applicant/assessee, while quoting a recent decision of the Honourable Karachi High Court reported as 2000 PTD 2407, prayed for rectification/modification of the order of the Tribunal in view of the mistakes of law as pointed out in the application or any other relief which the Tribunal may think fit.

9. We have heard Mr. Mir Ahmed Ali, Advocate learned AR for the applicant/assessee and Mr. Abdul Jaleel, learned DR for the respondent/Department and perused the respective orders.

10. Before taking up the main applications for rectification we may like to point out that the assessee moved another application on 24-9-2002 seeking relief in view of provisions of section (3) of section 156 of the late Income Tax Ordinance, 1979 requesting, for withdrawal of notice of hearing and to file the proceedings and the mistakes sought to be rectified to be considered as deemed to have been rectified. While stating the facts of the case and drawing comparative chart of the provisions of section 156 of the Ordinance, 1979 with that of section 221 of the new Income Tax Ordinance, 2001, the assessee/applicant alleged that the main applications for rectification were filed on 27-7-2000 and the financial year in which these applications were filed ended on 30-6-2001 and the older on these applications was required to be mandatory passed by 30-6-2002 but no such order under section 156(1) was passed as provided and therefore, the mistakes would be deemed to have been rectified and all, the provisions of the Ordinance. 1979 shall have effect accordingly. Hence, the prayer of the assessee/applicant for a deemed rectification of the mistakes sought to be rectified.

11. At this juncture, we may like to mention here that similar application with similar grounds and request of another assessee has already been disposed off by this Tribunal vide order, dated 28-1-2003 passed in MA(R) No. 23/IB of 2000-2001 in the case of Mrs. Azra Parveen v. ACIT and that case was too represented by the same learned A.R. (Mr. Mir Ahmed Ali, Advocate) who is representing the instant case on behalf of the assessee. In that case, the Tribunal has discussed in detail the terms "any income tax authority" and the "Appellate Tribunal" and "such authority" in the context of subsection (1) and (3) of section 156 of the Ordinance, 1979 and came to the conclusion that there remained nothing to infer or suggest that terms `income-tax authority" as used in subsection (3) of section 156 of the Ordinance, 1979 could at all be understood to include the Appellate Tribunal as well for giving deeming effect to the mistakes sought to be rectified through the Tribunal. The Tribunal finally refused to accede to the request made by the assessee on that score. That case now stands reported as 2003 PTD (Trib.) 1708 in July part of Taxation.

12. Therefore, keeping in view the earlier order of the Tribunal as referred to above on a similar application with similar proposition, the instant application is also decided in the same manner because of similarity of the facts and the proposition involved in both the applications. Accordingly the application filed by the applicant/assessee for giving deeming effect to the rectification of mistakes sought to be rectified under the provisions of subsection (3) of section 156 of the Ordinance, shall stand refused.

13. Now we take up the discussion on the main miscellaneous applications for rectification filed by the applicant/assessee.

14. First of all, in order to have a clear view of the findings of the Tribunal (for which rectification has been sought), we may like to reproduce here the relevant parts of the order, dated 30-5-2000 of the Tribunal passed in main appeals assessments year-wise:--

For Assessment year 1993-94

"(4) We have given anxious consideration to the arguments of the learned counsel for the assessee on the point of limitation and feel that he has unnecessarily plunged into deep waters, without touching the bottom of the ocean, in an attempt to find out whether or not there was any limitation prescribed for making fresh assessment after the c.3ncellation of original assessment by the IAC undo: section 66A of the Ordinance. If he were to remain firm on the ground and not to plunge into the water, he would have known that the provisions of the Ordinance are very much there in respect of limitation for the assessments to be made in consequence of or to give effect to any finding or direction contained in any order made under section 66A of the Ordinance. It is very clearly provided in section 66(1) of the Ordinance that assessment in such a case can be made at any time within two years from the end of the financial year in which order of the IAC made under section 66A (which falls under Chapter VII) is received by the Assessing Officer. In this case, the IAC made order under section 66A on 16-4-1995 and the fresh assessment was finalized on 10-5-1997 by the Special Officer in consequence of IAC's order, which was before the period of limitation of two years prescribed under section 66(1) of the Ordinance.

(5) Another legal objection taken by the learned counsel for the assessee is that the entire reassessment proceedings by the Special Officer are ab initio illegal, void, without lawful authority and jurisdiction. It is contended that Special Officer is not mentioned in the administrative hierarchy as one of the income tax authorities in section 3 of the Ordinance, unlike the provisions of the repealed Income Tax Act of 1922 where Special Officers were listed. It is further contended that Special Officer, as- an authority, is neither listed under section 3(1) of the Ordinance nor it is provided to be subordinate to the C.B.R. or any other authority, including the Regional Commissioner of Income Tax (RCIT). Therefore, the orders passed by the RCIT under section 4(2) for appointment of Special Officers are coram non judice because the Inspectors of Income Tax appointed as Special Officers could not come within the purview of the definition of "Deputy Commissioner" as per clause (17A) inserted in section 2 of the Ordinance, by Finance Act, 1993.

According to the learned counsel, this clause lays down that any person of any designation, such as Assistant Commissioner of Income Tax, Income Tax Officer; Special Officer, Deputy Director of Income Tax (withholding), Assistant Director of Tax (withholding), Deputy Director of Intelligence and Investigation. Assistant Director of Intelligence and. Investigation or a Tax Recovery Officer has to be first appointed as "Deputy Commissioner" under section 4 of the Ordinance. The learned counsel has given explanation of section 4 of the Ordinance in the following words:

"The Regional Commissioner, of Income Tax Authority, listed at clause (aa) of section 3(1), is neither any "Other Income Tax Authority", as provided under section 4(2) nor such "Other Income Tax Authority" is listed under section 3(1). In addition, the definition of "Deputy Commissioner of Income "fax" Authority listed at clause (e) of section 3(1) as provided under section 2(17A) is enlarged to include Special Officer. But no such authority is listed under section 3(1) so as to appoint Deputy Commissioner of Income Tax, authority listed at clause (e) of section 3(1), under section 4 for the purposes of Ordinance. Furthermore, no authority under Nomenclature "Special Officer" is provided to be subordinate to Regional Commissioner of Income Tax, the Authority listed in clause (aa) of section 3(1).

Similarly, the said Special Officer is also not subordinate to any Authority as provided under subsections (1A), (1B), (2), (3), and (4) of section 3. Thus appointment orders, of Inspectors of Income Tax Authority listed in clause (f) under section 3(1) as Special Officer under subsection (2) of section 4, issued by the Regional Commissioner of Income Tax, the Authority listed under section 3(1)(aa) is coram non judice and of no legal authority. The assessments finalized by an Assessing Officer, i.e. Special Officer, is not an authority and do not fall within the kingdom of authorities as provided under section 3(1). Therefore, the entire assessment proceedings as well as order passed, in consequence of this basic requirement, are without lawful authority and jurisdiction."

The conclusion drawn by the learned counsel for the assessee is that the RCIT, listed in section 3(1)(aa) of the Ordinance was neither empowered to appoint any Special Officer nor the said Special Officer is listed as an Income Tax Authority under section 3 for the purposes of the Ordinance and therefore, the assessment order finalized by the Special Officer is of no legal effect, ab initio illegal, void and without lawful authority. These objections have been given careful consideration by us. It is our considered view that RCI.T, being one of the Income Tax Authorities specified in section 3(1) of the ordinance, is competent to appoint an Inspector of Income Tax subordinate to him under section 3(1A) as Special Officer by virtue of the powers vested in under subsection (2) of section 4 of the Ordinance. Once such an income tax authority, subordinate to RCIT is appointed under section 4(2), it becomes income tax authority of higher status than Inspector of Income Tax and falls within clause (e) of subsection (1) of section 3 of the Ordinance. An Inspector of Income Tax, when appointed as Special Officer under section 4(2), becomes competent to function as Deputy Commissioner of Income Tax within the jurisdiction assigned to him under section 5 of the Ordinance. Since the term "Deputy Commissioner" defined in clause (17A) of the Ordinance includes a Special Officer and is treated as an income tax authority under section 3(1), it was not necessary for the Legislature to make a special section of Special Officers in the said section. Besides, the hierarchy of Income Tax Administration and appointment of income tax authorities mentioned in sections 3 and 4 of the Ordinance cannot be questioned if such Income Tax Authorities are legally empowered to perform sections of "Deputy Commissioner" within their jurisdiction under section 5 of the Ordinance. It is also well settled proposition of law that administrative orders issued by the officers in administrative hierarchy of Income Tax Department are not amenable to the appellate jurisdiction of the appellate authorities in the judicial hierarchy established under the Ordinance. Any administrative error, irregularity or excess of jurisdiction lies exclusively within the domain of the administrative hierarchy meaning thereby CIT, RCIT, C.B.R. etc., and cannot be contested before the Appellant Authorities tinder the Ordinance. The objections raised in this regard by the learned counsel are, therefore, untenable and rejected. "

Assessment year 1994-1995

"(8). We have considered the facts 'and' circumstances of the above stated two cases in which the superior Courts expressed their views and find them clearly distinguishable from the facts of the case before us. Here, the assessment record shows that the IAC whose approval for the draft assessment order was obtained had not prejudiced or influenced the mind of the Special Officer in any manner and had not given any orders or directions against the interest of the assessee. What really happened was that, having completed the assessment proceedings in a normal manner, the Special Officer submitted the first draft order, which contained grammatical mistakes and was not in a proper format. This was returned by the IAC without any adverse directions, orders or instructions to cause any prejudice to the case of the assessee. The Special Officer then submitted another draft of assessment order to the IAC, which was approved by him, subject to the observations for taking a lenient view in the case of the assessee. Such an approval of the draft assessment order in favour of the assessee was an internal administrative matter and was not against any provision of the Ordinance, including section 7 dealing with assistance, guidance or instructions by the superior Income Tax Authorities. This objection is without force and is, therefore, overruled."

"(10) We have examined the above legal objection and arguments in support thereof and are not convinced that it is based on correct interpretation of law especially in view of the provisions contained in section 59(1A) of the Ordinance which permits assessments under section 62 where returns are selected for audit in accordance with the Scheme of Self-Assessment. A plain reading of section 59(1) also shows that only those returns of total income can be accepted for assessment orders under section 59(1) which qualify for acceptance in accordance with the provisions of a Scheme of self assessment made by the C.B.R. for the relevant assessment year. Where, however, such returns do not qualify for acceptance in accordance with the provisions of the said scheme, no assessment order can be made under section 59(1) for which the period of limitation is specified under subsection (4) thereof. Selection out of returns filed under the Self-Assessment Scheme can be made for audit as stated in subsection (1A) of section 59, which empowers the Deputy Commissioner to make assessment under section 62 or section 63, as the case may be. There is no distinction between the returns selected for audit through computer ballot or selected otherwise for the reasons mentioned in the scheme made under section 59(1) of the Ordinance. All returns selected for audit fall outside the ambit of section 59(1) and assessments in such selected cases are to be made under section 62 or section 63 as provided in subsection (1 A) of section 59 of the Ordinance. It is, therefore; wrong to assume that the order in respect of a case selected for audit through computer ballot must be passed under section 59(1) and that too before the 30th June of that very year as stipulated in section 59(4) of the Ordinance. Had this been the intention of the Legislature, there was no need to provide for selection of returns for assessment under section 62, after proper examination and scrutiny, within a reasonable period of time, i.e. before the expiry of two years from the end of the assessment year in which the total income was first assessable as provided in section 64 of the Ordinance. That undesirable intention would have defeated the very purpose of audit of selected returns and, the provisions" of section 59(1A) and section 64 would have become meaningless. This objection of the learned counsel for the assessee is, therefore, not sustainable."

Assessment year 1995-96

"(14) The legal objections raised by the learned counsel for the assessee in 'respect of the assessment year 1995-96, being common for the earlier assessment years, have already been dealt with in the preceding paragraphs. On factual plane, it is contended that the estimation of sales at Rs.27,50,000 as against the declared sales of Rs.10,01,500 and reduced by the learned CIT(A) to Rs.16,00,000 is still not justified, arbitrary and excessive in the light of assessment finalized in consequence of order under section 66A of the Ordinance when the Assessing Officer made assessment under section 62/66A vide order, dated 10-5-1997 for the assessment year 1993-94. We have already given the finding in Para. 6 of this order that the learned AAC who consulted the assessment records and found defects in the assessment order was justified to set aside the case for the assessment year 1993-94 with the directions to the Assessing Officer to bring material evidence on record to justify his estimate after providing a fair and reasonable opportunity of being heard to the assessee. Therefore, any reference to the set aside assessment and the estimation of sales made for that year, would be irrelevant. Since the reduction of sales to Rs.15,00,000 made by the learned AAC for the assessment year 1994-95 has been upheld by us and there is no reason to make deviation from such reasonable treatment, we hold that the learned CIT(A) has rightly reduced the estimated sales of Rs.25,00,000 to Rs.16,00,000 in view of facts and circumstances of the case, relevant to the assessment year 1995-96. This reduction does not call for interference despite the argument of the Department that the sales were totally unvouched, unverifiable and were rightly estimated at Rs.27,25,000 in accordance with the history of the case and the extent of the assessee's business. This argument is not supported by any material on record and is not in. accordance with the history of the case. The treatment given by the learned CIT(A) is, therefore, held to be fair and reasonable. The application of GP rate at 25 % is also not disturbed in view of the position stated in paragraph 12 of this order."

15. We have reproduced above the relevant parts of the order of the Tribunal and it was obvious from the said order that the every objection and argument of the learned AR of the assessee/applicant was considered at length and dealt with elaborately by the Tribunal and the propositions as raised were answered and decided by the Tribunal with the reasons to that effect. Now, the assessee/applicant has raised the same factual and legal controversies to be addressed by the Tribunal through these applications for rectification of the order of the Tribunal. The same contentions have been raised and same arguments have been advanced by the learned AR in the instant applications. Therefore, we have been left with no choice but to state here the limitations from the aspect of scope of the provisions of section 156 of the late Ordinance, 1979 in order to understand the applicability of the said provisions in real perspective. From the bare reading of the provisions of section 156 of the late Ordinance, 1979, it was obvious that an Income Tax Authority' or the `Tribunal' could amend any order passed by it, so as to rectify any mistake apparent from the record. Significantly, a mistake apparent from record qualified for rectification of such mistake. An error in the order sought to be rectified must be apparent on the face of the record. The scope of provisions of section 156 has been explained in a case of the Tribunal reported as 1993 PTD 964 (Trib.) wherein it has been held that the powers of the Tribunal for rectification of mistakes cannot be extended or allowed to be stretched to authorize the Tribunal to sit in judgment as an Appellate Court against its own order and reverse the same by finding faults or by taking additional grounds to come to 4 conclusion in favour of the applicant. The Honourable Supreme Court of Pakistan in the case reported as 1992 SCMR 689 = 1992 PTD 570 has been pleased to observe in para. 5 of the judgment in respect of power to rectify any mistake in the order under section 35 of the Repealed Income Tax 1922 which is apparent from the record, as under:--

"Therefore, essential condition for exercise of such power is that the mistake should be apparent on the face of record; mistake which may be seen floating on the surface and does not require investigation or further evidence. The mistake should be so obvious that on mere reading-the order it-may immediately strike on the face of it. Where an officer exercising power under section 35 enters into the controversy, investigates into the matter, reassesses the evidence to take into consideration additional evidence and on that basis interprets the provisions of law and forms an opinion different from the order, then it will not, amount to `rectification of the order. Any mistake which is not patent and obvious on the record, cannot be termed to be an order which can be corrected by' exercising power under section 35."

16. In the above referred case-law the Honourable Supreme of Pakistan has been pleased to observe about the extent of the power to rectify the mistakes and has enunicated cardinal principles to the effect that the mistake should be apparent on the face of the record and may be seen floating on the surface of the record and it should be patent and obvious on the record. Moreover, the power to rectify mistakes under the income tax law or wealth tax law cannot be stretched to the extent or review of an order or to the extent of authorizing the Tribunal or the authority concerned (which passed the order) to sit in judgment as an Appellate Court against its own order. Obviously, in the legal parlance, `review' of an order/judgment is a different connotation of law under the administration of civil and criminal justice than that of `rectification' of an order under the tax laws. However to a certain extent the power of rectification of mistakes under section 156 of the late Income Tax Ordinance, 1979 (section 221 of the new Income Tax Ordinance, 2001) or section 35 of the Wealth Tax Act, 1963 can be equated with the power of amendment of judgments, decrees or orders as provided under section 152 of the Code of Civil Procedure, 1908, which basically hinged on a maxim "Actus Curiae neminem gravabit" (an act of the Court shall prejudice no one). Under the provisions of section 152 of the Code of Civil Procedure, clerical or arithmetical mistakes in judgments, decrees or orders or error arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.

17. In the above context, there appears a similarity in the action under both the said laws for the purpose of understanding the concept of mistake which is regarded as apparent on the face of the record and not more than that.

18. From the above, it became clear that the rectification as provided under section 156 of the late Ordinance, 1979 or section 35 of the Wealth Tax Act, 1963 were having a limited scope only to the extent of rectifying any mistake in the order by the Authority itself who passes the order and the mistake sought to be rectified must be a mistake apparent from the record. There appeared no room for employment of any argument on any legal issue which has already been dealt with in the main order by the forum concerned for questioning the same for its resolution in a different legal perspective suitable to the applicant. What stood originally decided by the forum concerned in respect' of the legal issues as well as on the factual issues would be an answer to the same contentions and the same arguments if again raised under the umbrella of an application for rectification of the order. The Tribunal or the forum concerned while dealing with a rectification application cannot transgress its authority or assume jurisdiction to sit in judgment of its own order and start scrutinizing its order as is done by an appellate forum. Of course, the law provides higher forums/Appellate forum for this purpose. In the case in hand, .the contentions and grounds raised by the assessee in the applications and the arguments advanced by the learned AR in support thereof being the same as originally made at the time of hearing of main appeals, therefore, it would tantamount to rehear the main appeals and give findings afresh thereon on the issues which already stood addressed and decided by the Tribunal.

19. We have already reproduced the relevant parts of the order of the Tribunal. While seeing to those parts of the order of the Tribunal in the context of averments made in the instant rectification applications we have found that the assessee in fact sought reappraisal of the factual as well as legal issues like that of, time limitation for assessment under section 66A appointment of Special Officer under section 4, acceptance of return under para. 4(ii) of SAS, validity of the order passed by a Special Officer etc. and a redecision thereon through these applications for rectification which in our view, would amount to enlarging the scope of provisions of section 156 to the extent of sitting in judgment by an appellate forum. In these circumstances, we do not see any justification to reopen the decided issues by acceding to the request of the assessee as made through these applications. Moreover, in the case in hand no mistake apparent from the record liable to be rectified appeared in the order of the Tribunal, dated 30-5-2000.

20. Resultantly, all the above miscellaneous applications shall stand rejected.

C.M.A./954/Tax (Trib.) Rectification applications rejected.