M. As. Nos. 25/LB and 26/LB of 2005 in W.T.As. Nos. 1137/LB and 1138/LB of 2000, decided on 27th April, 2005. VS M. As. Nos. 25/LB and 26/LB of 2005 in W.T.As. Nos. 1137/LB and 1138/LB of 2000, decided on 27th April, 2005., 2006 PTD-INCOME-TAX-APPELLATE-TRIBUNAL-PAKISTAN 594 (2005)

Wealth Tax Act (XV of 1963)---

----Ss. 35 & 17---Rectification of mistake---Appellate Tribunal came to the conclusion that orders passed by the two authorities below were not sustainable in the eye of law---Order passed by the First Appellate Authority and assessment proceedings were held to be without jurisdiction having failed to comply with the provisions of law---While concluding the judgment, it was observed that Appeal Commissioner's order would stand vacated and that of the Assessing Officer restored---Validity---Mistake had been crept therein---Contradictory findings had been recorded qua giving treatment to the assessment order---Whole tenor and the purport of the decision made by the Tribunal suggested annulment of the assessment order being made in contravention of the provisions of S.17 of the Wealth Tax Act, 1963---Appellate Tribunal's order was rectified which shall be read and that of the Appeal Commissioner's order would stand vacated and annulled and that of the Assessing Officer would be made part of the appellate order already passed by the Appellate Tribunal.

Muhammad Shahid Abbas for Applicant.

Dr. Shahid Siddique Bhatti, D.R. for Respondent.

Date of hearing: 27th April, 2005.

ORDER

RASHEED AHMAD SHEIKH (JUDICIAL MEMBER).---This is a miscellaneous application pertaining to assessment year 1994-95 whereby order of this Tribunal recorded in W.T.A. No: 1137/LB of 2000, dated 24-11-2001 has been sought to be rectified under section 35 of the Wealth Tax Act, 1963.

2. In this regard it has been stated that the honourable Income Tax Appellate Tribunal while concluding its judgment has restored the Assessing Officer's order instead of declaring non-existent in the eye of law. Reference in this regard was made to para-12 of the Tribunal's order, dated supra wherein a mistake has taken place. As the mistake is apparent from the record, therefore, it is prayed that the findings recorded by the honourable third member, who acted as a referee member in the instant case, may be rectified in terms of section 35 of the Wealth Tax Act. On the other hand the learned D.R. willy-nilly opposed the said contention of the assessee's learned counsel.

3. What happened in this case was that question of assumption of jurisdiction to assess the assessee under the provision of section 17(1)(a) was challenged. According to the assessee, his case was covered under clause (b) and not under clause (a) of subsection (1) of section 17 of the Wealth Tax Act. At the first appellate stage, the First Appellate Authority proceeded to set aside the assessment. When this issue came up for consideration before the Tribunal, the learned Judicial Member, namely Syed Nadeem Saqlain, after making a detailed discussion in the order and after considering the judgments cited at the bar, came to the conclusion that the order passed by the two authorities below were not sustainable in the eye of law. Accordingly the impugned appellate order passed by the First Appellate Authority and the assessment proceedings were held to be without jurisdiction having not complying with the provision of law. However, the learned Accountant Member, Mr. Muhammad Munir Qureshi, made a dissenting note whereby the Appeal Commissioner's order of setting aside the assessment was maintained. In this background the third member was appointed to answer the questions proposed in their order.

4. The third member, on his turn, agreed with the findings and the reasoning recorded by the learned Judicial Member, the author of the judgment. Meaning thereby the impugned assessment order was declared illegal and void ab initio. Nevertheless while concluding the judgment, it was observed as under:-

"(11) ---------------------------------------------

Since the order passed by learned Judicial Member is well-reasoned and well-based, therefore, agreeing with his views I would hold that the impugned assessment order has been passed in flagrant violation of legal provisions and also holds the same to be against the law.

(12) Resultantly the Appeal Commissioner's order would stand vacated and restored that of the Assessing Officer.

(13) Hence, the assessee's appeals are accepted."

5. On going through the order as a whole, we are clearly of the view that a mistake has been crept therein. In fact contradictory findings have been recorded qua giving treatment to the assessment order. It needless to mention here that the whole tenor and the purport of the decision made by the two Judicial Members, the author of the judgment and the third Member, suggests annulment of the assessment order being made in contravention to the provision of section 17 of the Wealth Tax Act. Now, para-12 of the Tribunal's order, dated supra is hereby rectified in terms of section 17 of the Wealth Tax Act which shall be read as under:-

"(12) Resultantly, the Appeal Commissioner's order would stand vacated and annulled that of the Assessing Officer."

6. This order will form part of the appellate order already passed by the Tribunal vide W.T.As. Nos. 1137 (assessment year 1994-95) and 1138/LB of 2001 (assessment year 1995-96), dated 24-11-2001.

7. Ordered accordingly.

C.M.A./481/Tax (Trib.)Application accepted.