COMMISSIONER OF INCOME TAX, LAHORE VS State
2004 P T D 1027
[Lahore of High Court]
Before Nasim Sikandar and Sardar Muhammad Aslam, JJ
COMMISSIONER OF INCOME TAX, LAHORE
versus
TAIWAH CHINESE RESTAURANT (PVT.) LTD., LAHORE
P.T.R. No. 66 of 2001, decided on /01/.
5th October, 2004. Income Tax Ordinance (XXXI of 1979)---
----Ss. 136(2), 50, 52, 108(b) & 142---Appeal to High Court---Question of law arising out of order of Income Tax Appellate Tribunal sought to be referred to High Court for consideration and answer was to the effect, "whether on the basis of fact and circumstances of case Tribunal was justified in deleting the penalties levied for default of S. 142 of which statement is clearly prescribed in S. 201 of Income Tax Rules, 1982 by relying on a judgment dealing with non-applicability of S. 142 on prescribed statement on Rules 53, 61 & 61-A"---Said question having not arisen out of order of Tribunal, High Court declined to admit the same for consideration for two reasons; firstly, the original assessment under S.52 of Income Tax Ordinance, 1979 was cancelled by Commissioner (Appeals) and that cancellation was maintained by Tribunal and Revenue had not challenged that cancellation and secondly, before Tribunal, at time of hearing of appeal, issue as to an obligation of assessee to file a statement under S.142 of Income Tax Ordinance, 1979 was neither mooted nor it was ruled upon by Tribunal---Tribunal had recorded finding of fact that no statement under S. 142 of Income Tax Ordinance, 1979 was required to be filed by assessee for the two assessment years in view of capital involved in business---Such finding had not been challengedonanylegalbasisnorsamewasallegedtobeagainstrecord---Question as framed could not be said to have arisen out of order of Tribunal.
Muhammad Ilyas Khan for Petitioner.
Date of hearing: 5th October, 2004.
ORDER
This is an application under section 136(2) of the Income Tax Ordinance, 1979 praying for consideration and answer of the following question of law which statedly arose out of the order of the Income Tax Appellate Tribunal, Lahore Bench, Lahore, dated 10-3-2001:--
Whetheronthebasisoffactsandcircumstancesofthecasethe learned ITAT was justified in deleting the penalties leviedfordefaultofsection142ofwhichstatementisclearlyprescribedinRule,201oftheIncomeTaxRules,1982 by relying onajudgmentdealingwithnon-applicabilityofsection142onprescribedstatementonRules53,61and61-A .
2.The respondents a private limited company engaged in running a Chinese Restaurant.For the charge years, 1994-95 and 1995-96 and assessment under section 52 was framed on the ground that no deduction at source was made by the assessee under section 50. Also the Assessing Officer imposed penalty under section 108(b) of the Ordinance, 1979 on account of failure of the assessee to have furnished a statement under section 142 as on 1st of September, 1994 and 1st of September, 1995. Learned CIT(A) by relying upon a judgment of this Court recorded in Writ Petition No.7292 of 1996, dated 16-6-1996 cancelled the assessment framed under section 52. The order so recorded was maintained by the learned Tribunal on 23-9-2002.
3.Thereafter the Revenue made an application for reference of the aforesaid question to this Court which was declined by the learned Tribunal on 10-3-2001. The operative para. 4 of the order reads as under:--
For the charge year, 1994-95 the A.R. of the respondent has asserted that capital of the company was less than 1.5 million. Therefore, the statement was not necessary for the charge year, 1995-96 the capital was more than 1.5 million but the amendment, in Rules in 1995 vide S.R.O. did not envisage the filing of return for this year. Therefore, for this year alsofiling of return was not compulsory. The respondent is out of the mischief of the filing of returns. Even otherwise the questions which have been framed does not arise out of the impugned order of this Tribunal.
4.After hearing the learned counsel for the petitioner we are of the view that the question as framed does not arise out of the order of the Tribunal and therefore, we will decline to admit the same for our consideration for two reasons:--
Firstly, the original assessment under section 52 of the Income Tax Ordinance, 1979 was cancelled by the CIT(A). That cancellation was maintained by the Tribunal and the Revenue has not challenged that cancellation by way of either a reference application or a petition before this Court under section 136(1) of the Income Tax Ordinance, 1979.
Secondly, before the Tribunal at the time of hearing of appeal the issue as to an obligation of the assessee to file a statement under section 142 was never mooted nor it was ruled upon by the Tribunal. On the other hand while disposing of the reference application,asnotedabove,thelearnedTribunalrecordeda finding of fact that no statement under section 142 was required to be filed by the assesseefor the two assessmentyearsinvolvedviz.1994-95and1995-96inviewofthecapital involved in the business. That finding has not been challenged on any legal basis nor the same is alleged to be against record.
5.Therefore, as stated above, the question as framed cannot be said to have arisen out of the order of the Tribunal.
6.Answer declined.
H.B.T./C-45/LOrder accordingly.