Messrs J.K. (TECH) (PVT.) LIMITED VS INCOME TAX APPELLATE TRIBUNAL, LAHORE, 2005 PTD-SUPREME-COURT 1982 (2001)

(On appeal from the judgment, dated 1-6-2000 of the Lahore High Court passed in ITA No. 476 of 2000).

Income Tax Ordinance, (XXX1 of 1979)---

----Ss. 62, 80-D & 136---Rectification application---Limitation---Assessment order under S.62 of Income Tax Ordinance, 1979 determining liability of assessee under S.80-D thereof---Non-filing of appeal against order under S.62 of Income Tax Ordinance, 1979---Filing of rectification application against order under S. 80-D of the Ordinance---Appeal before Commissioner against dismissal of application by Deputy Commissioner---Dismissal of appeal for being time-barred on the ground that as order under S.80-D of Income Tax Ordinance, 1979 was integral part of order under S.62 thereof, appeal was barred from the date of order made originally under S.62 thereof---Validity---Order passed on rectification application was appealable---Question of limitation qua such appeal should have been decided with reference to order passed on rectification application in relation to order made under S.80-C of the Ordinance---Order on rectification application was separate and independent order, thus, appeal against same could not be taken and assumed as barred by time---Appeal was not barred by time.

Khawja Tariq Rahim, Advocate Supreme Court, Mansoor Shah with permission and Tanvir Ahmad Advocate-on-Record for Petitioners.

M. Ilyas Khan Advocate Supreme Court and M. Aslam Chattha, Advocate-on-Record for Respondents.

Date of hearing: 22nd June, 2001.

JUDGMENT

MUNIR A. SHEIKH, J.---This petition is directed against the judgment, dated 1-6-2000 of the Lahore High Court through which the appeal filed by the petitioner under section 136 of the Income Tax Ordinance, 1979, has been dismissed.

2. The facts of the case are that through one consolidated order, the Income Tax Officer decided the question of assessment under section 62 of the Income Tax Ordinance and also the liability of the petitioner under section 80D of the said Ordinance about the minimum tax.

3. The petitioner did not feel aggrieved against the assessment made under section 62 of the Ordinance whereas it felt aggrieved of the order passed under section 80-D thereof. It is an admitted position that order under section 80D was not appealable under the Income Tax Ordinance whereas order under section 62 of the said Ordinance was appealable.

4. The petitioner, however, made application under section 156 of the Ordinance before the same authority for rectification of the order made under section 80D on the ground that certain liabilities had been put to its shoulders for which it was not liable. This application was dismissed by the Deputy Commissioner Income Tax through order, dated 17-9-1999. Learned counsel for the respondent does not dispute the correctness of the legal proposition that this order under section 156 of the Ordinance was appealable before the Commissioner.

5. The petitioner filed appeal against the order, dated 17-9-1999 before the Commissioner which was dismissed through order, dated 27-11-1999 as barred by time assuming as if order made under c section 80D of the Ordinance was integral part of order made under section 62, therefore, the same was barred from the date of the order made originally under section 62 of the Ordinance.

6. Further appeal filed by the petitioner before the Lahore High Court has been dismissed though the impugned judgment, dated 1-6-2000 for the view taken by the Income Tax Tribunal has been upheld and it was assumed as if there was no separate legal entity of the order made under section 80D of the Ordinance which original order was not appealable and the proceedings initiated in appeal before the Commissioner were directed against the order, dated 17-9-1999 passed in application made for rectification of the order passed under section 80D of the Ordinance which was admittedly appealable, therefore, the question of limitation qua the said appeal should have been decided with reference to the order; dated 17-9-1999 in relation to order made under section 80D of the Ordinance which was separate and independent order and could not have, been taken and assumed as barred by time assuming as if was directed against order passed under section 62 ibid, therefore, the appeal filed by the petitioner against the order, dated 17-9-1999 before the Commissioner was not barred by time and the view taken by the Commissioner and the High Court in the impugned judgment is not sustainable.

7. For the foregoing reasons, this petition is converted into appeal, the same is accepted, impugned judgment, dated 1-6-2000 of the High Court and order, dated 27-11-2000 of the Commissioner are hereby set aside and the case is remanded to the Commissioner to decide the appeal on merits against the order, dated 17-9-1999 in relation to order passed under section 80D of the Ordinance after hearing the parties in accordance with law.

8. There will, however, be no order as to costs.

S.A.K./J-9/S??????????????????????????????????????????????????????????????????????????????????????? Case remanded.