COMMISSIONER OF INCOME TAX, COMPANIES ZONE-I, LAHORE VS S.M. RIAZ & SONS (PVT.) LTD., 2006 PTD-LAHORE-HIGH-COURT-LAHORE 1557 (2005)

Income Tax Ordinance (XXXI of 1979)---

----Ss. 134, 136 & 156---First order of Appellate Tribunal disposing of appeal while maintaining order-in-original---Second order of Appellate Tribunal dismissing appeal for want of merit after recalling its first order on a miscellaneous application for rectification under S.156 of Income Tax Ordinance---Appeal before High Court against such second order of Appellate Tribunal---High Court with consent of parties, set aside both such orders of the Tribunal, resultantly, appeal would be deemed to be pending before Appellate Tribunal to be heard and decided afresh in accordance with law.

Muhammad Ilyas Khan for Appellant.

Zia Haider Rizvi for Respondent.

Date of hearing: 17th November, 2005.

JUDGMENT

NASIM SIKANDAR, J.---Through this single judgment we intend to dispose of Income Tax Appeals Nos. 528 to 532 of 1998.

2. The Lahore Bench of Income Tax Appellate Tribunal on 4-4-1998 heard and disposed of five departmental appeals for the assessment years 1991-92, 1992-93, 1994-95,_1995-96, 1996-97 in re: DCIT/Wealth Tax, Companies Zone-I, Lahore v. Messrs S.M. Riaz & Sons (Pvt.) Ltd., Lahore. In the order so recorded it was concluded that "total sales of the assessee/respondent are the real turnover and the tax on cigarettes sale @ 0.1% and tax 0.5% on the other turnover/sales have been rightly charged."

3. Subsequently on a miscellaneous application moved by the assessee learned Members of the Tribunal on 30-6-1998 recalled the above order and fixed the departmental appeals for afresh hearing. On second hearing all departmental appeals were dismissed for want of merit on 2-9-1998. The second order has been assailed before us in these. Income Tax Appeals.

4. Heard the learned counsel for the parties. Both of them agree that the proposition if minimum tax under section 80-D was chargeable on commission instead of gross turnover of the assessee needs to be reconsidered by the Tribunal. It is so far the most important reason that the learned counsel representing the assessee has not seriously contested the reversal of original order on a miscellaneous application for rectification under section 156 of the late Ordinance, 1979. The contention of the learned counsel for the Revenue that the second order . dated 2-9-1998 which is impugned in these appeals could not have been passed under section 156 (rectification application of mistake) of the late Income Tax Ordinance, 1979, therefore, is a foregone conclusion. At the same time he agrees that setting aside of the second order, dated 2-9-1998 would prejudice the case of the respondent-assessee in as much as the restoration of the first order, dated 4-4-1998 will bar his further remedy on account of the time which has passed since then.

5. Therefore, with the consent of the parties both the orders of the Tribunal, dated 4-4-1998 and 2-9-1998 recorded on the above stated departmental appeals shall be set aside. These appeals shall be deemed pending before the Tribunal to be heard and decided afresh in accordance with law.

6. Appeals succeed to the above extent.

S.A.K./C-15/L???????????????????????????????????????????????????????????????????????????????????? Order accordingly.