SARDAR ALI BHATTI VS INCOME TAX APPELLATE TRIBUNAL, LAHORE, 2006 PTD-LAHORE-HIGH-COURT-LAHORE 83 (2005)

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

----Ss. 65 & 136---Appeal to High Court---Question relating to the assumption of jurisdiction by the Assessing Officer under S.65, Income Tax Ordinance, 1979 in the absence of alleged "definite information", was neither raised before the Tribunal nor the same was ruled upon by the Tribunal---Such question having not arisen from the order of the Tribunal, assessee was not entitled to an opinion of High Court under S.136, Income Tax Ordinance, 1979.

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

----Ss. 13 & 136---Addition---Appeal to High Court---Scope---Question of fact---Adjudication of questions as to whether restoration of addition by the Tribunal was justified or not and whether said amount purportedly represented a part of the brought forward amount from the earlier years, was dependent upon the inquiry into and the examination of the record---Tribunal being the final arbiter of the questions of fact determined the same against the assessee---High Court under S.136, Income Tax Ordinance, 1979, had no jurisdiction to re-inquire into and re-determine a question of fact.

Mian Ashiq Hussain for Appellant.

Muhammad Ilyas Khan for Respondents.

Date of hearing: 24th March, 2005.

JUDGMENT

MUHAMMAD SAIR ALI, J.---In Para. 4 of the Memo. of appeal the assessee prayed for our opinion on the following questions allegedly arising from order, dated 14-4-1998 of the learned Income Tax Appellate Tribunal, Lahore Bench, Lahore:--

"(A) Whether the learned Tribunal acted legally in upholding the assumption of the jurisdiction under section 65 of the Ordinance in the absence of the condition precedent that there should have been definite information to the effect that any income had been escaped assessment?

(B) Whether under the admitted facts and circumstances of the case, the learned Tribunal was justified to restore the addition of Rs.1,57,963 under section 13(1)(c) while the said amount represented a part of the brought forward amount from the earlier years?"

2. We have heard the learned counsel for the parties, the main thrust of the arguments of the learned counsel for the appellant assessee was that no definite information was available with the Assessing Officer to justify reopening thereof under section 65 of the late Income Tax Ordinance, 1965 wherefor assumption of jurisdiction was unlawful.

In the second question, restoration of the addition of Rs.1,57,963 under section 13(1)(c) ibid by the learned Tribunal was challenged on the ground that the said amount represented a part of the brought forward amount from the earlier years.

Contrarily the learned counsel for the Revenue stated that the first question was neither a question raised by the appellant in his appeal before the learned Tribunal nor was the same ruled upon by the Tribunal. And that the second question was a pure question of fact based upon examination of the record. This Court, therefore, in exercise of appellate jurisdiction cannot examine the questions as raised by the appellant.

3. Having considered the submissions of the learned counsel for the parties, we are inclined to agree with the learned counsel for the Revenue. Examination of the detailed order, dated 14-4-1998 passed by the learned Income Tax Appellate Tribunal, Lahore Bench, Lahore shows that question-A relating to the assumption of jurisdiction by the Assessing Officer under section 65 ibid in the absence of alleged definite information, was neither raised before the learned Tribunal nor was the same ruled upon by it. This, therefore, is not a question arising from the order of the learned Tribunal entitling the assessee to an opinion from this Court under section 136 of the Income Tax Ordinance, 1979.

4. Furthermore, question-B is a pure question of fact as to whether restoration of the addition of Rs.1,57,963, by the learned Tribunal was justified or not and whether the said amount purportedly represented a part of the brought forward amount from the earlier years. The adjudication of this question is dependant upon the inquiry into and the examination of the record. The learned Tribunal being the final arbiter of the questions of fact determined the same against the appellant. This Court has no jurisdiction to re-inquire into and re-determine the questions of fact in exercise of its appellate authority.

5. In view of the above, none of the two questions deserves to be considered for an opinion by this Court. The appeal is accordingly dismissed.

M.B.A./S-443/L????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.