I.T.As. Nos. 1308/KB to 1310/KB of 2005, M.As. (Stay) Nos.3/KB to 5/KB of 2006, decided on 26th January, 2006. VS I.T.As. Nos. 1308/KB to 1310/KB of 2005, M.As. (Stay) Nos.3/KB to 5/KB of 2006, decided on 26th January, 2006., 2006 PTD-INCOME-TAX-APPELLATE-TRIBUNAL-PAKISTAN 828 (2006)

(a) Income Tax Ordinance (XXXI of 1979)---

---S.156--Rectification of mistake---Appeal against rectified order--Principles---If an order is modified under 5.156 of the Income Tax Ordinance, 1979 to the extent that the tax liability is increased, or the nature of such order is changed in such a manner that it is required to be read with the amended order then it is merged with the subsequent order---If any order under S.156 of the Income Tax Ordinance, 1979 does not increase or decease the tax liability of the assessee nor changes the fundamentals of such order, to appeal would lie against such order challenging the contents of the original-order.

(b) Income Tax Ordinance (XXXI of 1979)---

----S. 156---Rectification of mistake---Appeal---Cause of grievance, as enumerated in grounds of appeals by the assessee, arose out of the original assessment orders passed by the Assessing Officer under S.62 of the Income Tax Ordinance, 1979 against which the assessee failed to file any appeal---Appeal filed by the assessee in respect of order of Assessing Officer and subsequent order of First Appellate Authority were misdirected, which had been filed simply to keep the issue alive---Appeals were dismissed by the Appellate Tribunal.

(c) Income Tax Ordinance (XXXI of 1979)---

---Ss. 156 & 62---Rectification of mistake---Application for stay of demand---Request for stay of demand arising out of original order passed by the Assessing Officer under S.62 of the Income Tax Ordinance, 1979---Since assessee had failed to file appeal against the assessment order passed under S.62 of the Income Tax Ordinance, 1979 by the Taxation Officer and all his applications under S.156 of the Income Tax Ordinance, 1979- had been rejected by the Taxation Officer and subsequently his appeals filed before the First Appellate Authority as well as before the Appellate Tribunal had also failed, stay of demand was not granted by the Appellate Tribunal in circumstances.

Abdul Tahir, I.T.P. for Appellant.

Gohar Ali, D.R. for Respondent.

Date of hearing: 26th January, 2006.

ORDER

These appeals have been filed aggrieved of the consolidated order of the learned CIT(A), dated 21-6-2005. The assessee has filed very lengthy grounds of appeals, which are not otherwise maintainable under Rule 10 of ITAT Rules 2005. From these grounds it also appears that the assessee has not filed any appeal against the original assessment orders passed by the Assessing Officer under section 62. Subsequently he moved applications under section 156 requiring the Assessing Officer to amend the original assessment orders which were however, refused by the Assessing Officer vide his letter, dated 24-5-2004 which his finding as under:

Please refer to your application on the above subject-matter bearing, dated 14-4-2003, 16-4-2003 and 17-4-2003 requesting for rectification of the mistake which are regretted being without substantial ground come within the ambit of section 156 of the Income Tax Ordinance, 1979 whereas the assessment orders for the above assessment years have been passed by my predecessor in detail creating the tax liability for which demand notice and challan served upon in you.

I may like to inform you that assessment in your case has been finalized and in case if you are aggrieved on the assessed income you may filed an appeal before the appellate forum extending your grounds of appeal whatever you like to defend your case.

2. Subsequently, the assessee who had not filed appeals against the original orders and apparently the time to file appeals before the learned CIT(A) had already run out, filed appeals before the learned CIT(A) against the letter of the Taxation Officer, dated 24-5-2004. The learned CIT(A) confirmed the action of the Assessing Officer in refusing to rectify the assessment orders with his finding as under:--

"The arguments advanced by the A.R. of the appellant are considered. From perusal of record it transpires that the assessments were finalized under section 62 for all the impugned years and assessed income at Rs.3,06,395, Rs.8,72,288 and Rs.7,02,970. The notice of demand for all the years were validly served on the appellant. But the appellant failed to file appeals against such orders. Thereafter the appellant filed applications for rectification of mistake that the tax credit were not allowed in IT-30, the Assessing Officer after necessary verification allowed credit for all the impugned years. The grievance of the A.R. in rectification applications, dated 14-4-2003, 16-4-2003, 17-4-2003 and 26-6-2004 totally relates against the original orders passed under section 62 whereas the Assessing Officer was also quite justified to reject the rectification applications in accordance with law, therefore, the action of Assessing Officer stands confirmed."

3. Heard Mr. Abdul Tahir, ITP for the assessee and Mr. Gohar Ali for the Department.

4. After going through the record it is quite evident that all the issues taken up by the assessee/his AR in appeals before the learned CIT(A) and now before the Tribunal in appeals before us relate to the main assessment orders passed by the Assessing Officer under section 62. What appears from the proceedings in this case is that the assessee had not been able to file appeals against the main assessment orders before the learned CIT(A) within the prescribed time period. Hence applications under section 156 were moved to keep the matter alive. The said applications were refused by the Taxation Officer with his finding that the said applications do not fall under the ambit of section 156, as the main assessment orders were passed in detail apparently with conscious mind.

5. It is a well-settled principle that if an order is modified under section 156 to the extent that the tax liability is increased, or the nature of such order is changed in a such manner that it is required to be read with the amended order, then it is merged with the subsequent order. However, if any order under section 156 does not increase or decrease the tax liability of the assessee nor changes the fundamentals of such order, no appeal would lie against such order challenging the contents of the original order. In this case also the original assessment orders passed by the Taxation Officer remained intact along with the liability created therefrom and the assessee has no cause of grievance from such subsequent order. The cause of grievance, as enumerated in grounds of appeals by the assessee, arises out of the original assessment orders passed by the Taxation Officer under section 62 against which the assessee failed to file any appeal.

6. With the above findings, we hold that the appeals filed by the assessee in respect of order of the DCIT, dated 24-5-2004 and subsequent order of the learned CIT(A) are misdirected, which have been filed simply to keep the issue lie. Accordingly we dismiss all these appeals.

7. The assessee has also moved applications requesting us for stay of demand arising out of the Original orders passed by the Assessing Officer under section 62. Since the assessee has failed to file appeal against the said assessment orders passed under section 62 by the c Taxation Officer and all his applications under section 156 have been rejected by the Taxation Officer and subsequently his appeals filed before the learned CIT(A) as well as before the Tribunal have also failed we do not find any reason to grant stay of demand. These applications are accordingly dismissed.

C.M.A./22/Tax (Trib.)appeal rejected.