Income Tax Ordinance (XXXI of 1979)---

----Ss.80-D & 136---Appeal to High Court---Calculation of Tax-- Liability to turnover tax ---Assessee dissatisfied with remand order passed by Commissioner Income Tax (Appeal) filed appeal before Tribunal which was allowed by Single Bench by way of impugned order-- Department had assailed order of Tribunal contending that only two questions of law had arisen out of order of Tribunal; firstly whether on the facts and in the circumstances of the case, Tribunal was justified to hold that business of assessee firm being on wholesale/commission basis, its turnover was not liable to minimum tax tinder S.80-D of Income Tax Ordinance, 1979, whereas .Explanation to its subsection (2) expressly provided that turnover included gross receipts from sales of goods; and secondly that if answer to said question was in affirmative, whether Tribunal was justified to hold that assessee firm doing business on wholesale/commission basis was not liable to minimum tax under S.80-D of Income Tax Ordinance, 1979, whereas said section did not lay down any such distinction and gross commission receipts would be the turnover in terms of provisions of Explanation to subsection (2) of S.80-D of the Ordinance---Order of Tribunal did not show that issue of turnover of assessee as a Commission Agent of Company was the basis for holding in favour of assessee---Explanation to S.80-D of Income Tax Ordinance, 1979 was neither discussed nor ruled upon---Order of Tribunal had shown that First Appellate Order was maintained mostly for the reasons that assessment was made by Assessing Officer of a different circle and it was not sustainable---Second question did not arise out of said impugned order of the Tribunal and even otherwise it was more in the nature of an argument rather than raising a legal controversy to be resolved by the Court---High Court refused to consider the two questions and to rule upon them.

Mian Yousaf Omar for Appellant.

Syed Abid Raza for. Respondent.

Date of hearing: 11th March, 2004.

JUDGMENT

NASIM SIKANDAR, J.---This appeal under section 136 of the late income Tax Ordinance, 1979 seeks to assail an order of 'the Income Tax Appellate Tribunal, Lahore Bench, dated 30-4-1998. Following questions of law are stated to have arisen out of the order of the Tribunal

"(i) Whether on the facts and in the circumstances of the case, the learned ITAT was justified to hold that the business of the assessee firm being on wholesale/commission basis its turnover was to liable to minimum tax under section 80-D of the Income Tax Ordinance, 1979 whereas Explanation to subsection (2) of section 80-D of the Income Tax Ordinance, 1979 expressly pro vides that turnover includes gross receipts from sales of goods?

(ii) If the answer to the above question is in the affirmative, whether the ITAT was justified to hold that the assessee firm doing business on wholesale/commission basis was not liable to minimum tax under section 80-D of the Income Tax Ordinance, 1979 whereas section 80-D does to lay down any such dis tinction and the gross commission receipts would be the turnover in terms of the provisions of Explanation to subsection (2) of section 80-D of the Income 'Tax Ordinance, 1979. "

2. The assessee in this case is a registered person and during the relevant assessment year, 1992-93 derived income as a fertilizer dealer of Messrs Daud Corporation (Pvt.) Limited. The declared income of the firm in the year at Rs. 31,000 was accepted. However, the tax was calculated under the provisions of section 80-D of the Income Tax Ordinance, 1979 to hold him liable to turnover tax under section 80-D at Rs.14,371. The total tax paid at the said income at Rs.31,000 at Rs.650 was found short by Rs.17,226. Accordingly a demand was created at the aforesaid sum.

3. Learned CIT (Appeals) Sialkot on 25-2-1997 allowed the appeal filed by the petitioner in the following words:--

"Perusal of assessment record shows that the appellant has been dealing in Fertilizer on wholesale basis which were obtained from Messrs Daud Corporation '(Pvt.) Ltd. on commission basis. The levy of tax under section 80-D is not justified. It is also, pertinent to point out that demand has been created b5 the Assessing Officer of Circle-6 instead of Circle-11, Daska. The assessment is set aside with the directions that provisions of section 80-D be looked into and after taking into consideration the nature of purchases and sales the levy of tax under section 80-D be decided."

4. The assessee dissatisfied with the remand order, filed an appeal before the Tribunal which was allowed by a learned Single Bench by wav of the impugned order, dated 30-4-1998 in the following words:--

"I have gone through the orders of the authorities below and from the above facts it is quite clear that section 80-D does not attract in this case. It is surprising that after accepting the plea of the assessee the learned CIT(A) set aside the case which is not justified. The assessment order is, therefore, cancelled and the ITO Circle-II Daska is directed to make assessment in view of the above directions."

5. Heard the learned counsel for the appellant. He claims that the aforesaid two questions arise out of the said order of the Tribunal. However, we will not agree. The order of the Tribunal as reproduced above does not show that the issue of the turnover of the assessee as a commission agent of the said Company was the basis for holding in favour of the assessee. Also the explanation to section 80-D of the Ordinance was neither discussed nor ruled upon. The order of the Tribunal when seen in the perspective of the first appellate order rather shows that the first appellate order was maintained mostly for the reason that the assessment was made by the Assessing Officer of a different circle acid, therefore, it was not sustainable.

6. The question No.2 as framed again does not arise out of the said order of the Tribunal. Even otherwise it is more in nature of an argument- rather than raising a legal controversy to be resolved by this Court.

7. For the aforesaid reasons we will refuse to consider the questions and to rule upon them.

8. Appeal rejected.

H.B.T./C-37/LAppeal rejected.