MAHMOOD NAWAZ VS COMMISSIONER OF INCOME-TAX, COMPANY CIRCLE, ZONE B, KARACHI, 2005 PTD-KARACHI-HIGH-COURT-SINDH 2035 (2005)

Income Tax Ordinance (XXXI of 1979)---

---Ss. 136(2), 156(1) & Second Sched., Part III, para. 1---Amount of Zakat paid by assessee added to total income in exercise of powers of rectification under S.1.56(1), Income Tax Ordinance, 1979---Validity---Tribunal had examined such aspect of case with reference to relevant facts of case---Findings of Tribunal were unexceptionable--No question of law arose out of order of Tribunal---High Court dismissed application in limine.

Commissioner of Income Tax Company's II, Karachi v. National Food Laboratories 1992 SCMR 687 ref.

Iqbal Salman Pasha for Applicant.

Nasrullah Awan for Respondent.

ORDER

This application under section 136(2) of the Income Tax Ordinance, 1979, preferred by the assessee Mehmood Nawaz, proposes following questions of law for opinion of this Court:--

(a)Whether the learned Appellate Tribunal was right in holding that the relevant provision of law i.e. para. (1) of Part-III of the Second Schedule is not capable of two opinions.

(b)Whether learned Appellate Tribunal misdirected itself in law by holding that provisions of section 156 were applicable to the case of the applicant.

We have heard Mr. Iqbal Salman Pasha learned counsel for the applicant, and Mr. Nasrullah Awan, learned counsel for the respondent.

The main submission of Mr. Iqbal Salman Pasha, is that the payment of wealth tax made by the assessee during the relevant period, so also the payment of Zakat made by him were liable to be deducted out of the total income of the assessee in terms of para. (1) of Part-III of the Second Schedule of the Income Tax Ordinance, 1979, but the Income Tax Officer, while exercising his powers under section 156(1) illegally added such sums towards his total income, though earlier such deductions were allowed by him.

In the context of above submission of the learned counsel, we have perused the orders passed by the Commissioner of Income Tax dated 23rd April 1986, the order of ITAT, dated 30^th April, 1990 and the other order, dated 4-2-1991 passed by ITAT on the application of the assessee under section 136(1) of the Income Tax Ordinance.

It has been rightly pointed out by learned counsel Mr. Nasrullah Awan that the only controversy examined by the CIT (Appeals) in his order, as well as by the Tribunal in its above referred order, dated 30-4-1990 was that whether in the given facts and circumstances A of the case the powers of rectification, in terms of section 156(1) of the Income Tax Ordinance were rightly exercised by the Assessing Officer or not.

The Tribunal has examined this aspect in detail with reference to the relevant facts of the case and findings of the Tribunal in this B regard are unexceptionable. Reference to the case of Commissioner of Income Tax Companies II, Karachi v. National Food Laboratories (1992 S.CMR 687) made by Mr. Pasha is of no help to the case of the applicant as there is no cavil to the proposition of law propounded in this judgment, but its applicability would entirely depend upon the facts and circumstances of each case, that whether invoking of powers under section 156 of the Income Tax Ordinance, which is pari materia to section 35 of the repealed Income Tax Act of 1922, was legal or not.

For the foregoing reasons we are of the firm opinion that no question of law arises out of the order of ITAT for opinion of this Court within the scope of section 136 of the Income Tax Ordinance. Consequently, this application is dismissed in limine.

S.A.K./M-230/KApplication dismissed.