Income Tax Ordinance (XXXI of 1979)‑‑‑

‑‑‑Ss. 156 &‑ 65‑‑‑Rectification of mistake‑‑‑Agreed assessment‑‑‑Past and closed transaction ‑‑‑Assessee contended that Appellate Tribunal totally relied on the arguments put forward by the Department without appreciating factual controversy arising in the case as well as the case law furnished during the course of hearing‑‑‑Validity‑‑‑No error was found in the order of Appellate Tribunal‑‑‑Appellate Tribunal clarified that in an "agreed assessment" it was a "past and closed transaction" as assessee had already paid tax in two equal instalments as a consequence to the agreed assessment‑‑‑ "Agreed" assessment was arrived at with a clear understanding on the part of both the sides regarding their respective interest which were protected in the agreement‑‑‑Neither party could "wriggle‑' out of an agreement for whatever reasons happening subsequent to the agreement‑‑‑Any contrary practice would destroy the concept of "finality" of proceedings in a situation‑‑‑Miscellaneous applications were misconceived and prayer that Customs Tribunal had set aside the proceedings against the assessee which formed `the basis of reassessment made under S:65, Income Tax Ordinance, 1979 of the assessment years was not tenable and same were rejected by the Appellate Tribunal.

Muhammad Shahid Abbas for Appellant

Akram Tahir, D.R. for Respondent.

Date of hearing: 7th November, 2003.

ORDER

MAZHAR FAROOQ SHIRAZI (ACCOUNTANT MEMBER).‑‑---These miscellaneous applications have been filed by the assessee for the assessment years 1995‑96 to 1997‑98 to seek rectification of mistake crept in Tribunal's order, dated 30‑6‑2003 passed in I.T.As. Nos. 777 to 779/LB of 2003.

2. The learned counsel for the assessee submitted while deciding the appeals of the assessee the learned ITAT has totally relied on the arguments put forward by the learned DR without appreciating factual controversy arisen in the case as well as the case‑law furnished during the course of hearing. The learned counsel further stated that the Customs Sales Tax Appellate Tribunal in its order has categorically held that adjudicating authority could not prove its allegation for misusing of S.R.O, hence, the proceedings are declared set aside. Meaning thereby that proceedings would stand quashed. In fact the learned DR understood the term‑ set aside used in that order to start the proceedings afresh is generally followed in the Income Tax Department proceedings. The learned counsel further elaborated that in other as such as in customs and sales tax law this term means declaring the order nullity in the eye of law and no fresh proceedings can be started in such eventuality. This term has been used in the same context in the present case where rendering decision by the Customs, Excise and Sales Tax Appellate Tribunal. The learned counsel also contended that agreed assessment has locus standi in the eye of law. Copy of the judgment delivered by the Lahore High Court was furnished whereby the learned Bench has categorically held that agreed assessment is no more available in encounter of Income Tax Ordinance, 1979. , This judgment has been ignored by the Bench while disposing of the appellant's appeal in the instant case. The learned DR, on the other hand, has submitted that no mistake whatsoever has been pointed out by the assessee which requires rectification.

3. We have considered the arguments made by the learned AR before us in the above context. We would like to point out here that there is no error in the order of the Tribunal, dated 30‑6‑2003 cited (supra). At the same time, we would also like to clarify here that in an "agreed assessment" as entered into by the assessee and the income tax department it is a "past and a closed transaction". The assessee has already paid tax of Rs.4 lacs in two equal instalments as a consequence to the agreed assessment. According to pronouncements of the Superior Courts an "agreed" assessment is arrived at with a clear understanding on the parts of both the sides regarding their respective interest which are protected in the said agreement. It has also been‑ held that neither party can "wriggle" out of an agreement for whatever reasons happening subsequent to the agreement. As may be appreciated, any contrary practice would destroy the concept of "finality" of proceedings in a situation as that in the present case. So the miscellaneous applications of the learned AR before us are misconceived and his prayer that the Customs Tribunal has set aside the proceedings against the assessee which formed the basis of reassessment made under section 65 for the three assessment years is not tenable and the same are rejected.

C.M.A./356/Tax (Trib.) Applications rejected.