VS, 2007 PTD-INCOME-TAX-APPELLATE-TRIBUNAL-PAKISTAN 2352 (2007)

Income Tax Ordinance (XLIX of 8001)---

----S.221---Income Tax Ordinance (XXXI of 1979), S. 156---Rectification of mistake---Issue involved was not taken at any stage of proceedings---Matter was a factual controversy first time raised in rectification application, even otherwise order did not contain. any such discussion, and such omission could not be taken as error in the order---Assessee, during the course of rectification, was issued a show-cause notice but he failed to show appearance, resulting in ex parte decision---Setting aside, in circumstances, was necessary---Rectification application was dismissed by the Appellate Tribunal in circumstances.

Abdul Tahir, ITP for Appellant.

Dr. Manzoor Memon, D.R. for Respondent.

ORDER

By this order, we .would prefer to decide miscellaneous application under section 156 of the Income Tax Ordinance, 1979 read with section 221 of the Income Tax Ordinance, 2001 moved on the instance of the assessee. The present application has been moved to rectify the order; dated 27-6-2006. The reasons thereof are hereunder;--

"That in ground No.2 of grounds of appeal it has been mentioned that the learned CIT(A) was not justified to cancel the order when the order was rightly rectified under section 221 by charging tax at 6%. In this regard it is submitted that grounds of appeals were also defective as the order has been passed under section 221 of new Income Tax Ordinance, 2001. This apparent mistake of law."

2. The assessee has challenged that initial order was passed under the Income Tax Ordinance, 1979 (Repealed Income Tax Ordinance, 1979) whereas the present order has been passed under section 221 of the Income Tax Ordinance, 2001. The counsel argued that above ground of appeal is Appeal No. 1327/KB of 2005 is defective. In this context the assessee has referred one of the paras of the order of the Tribunal. We are however, not able to understand that how ground of appeal referred above to could crate a mistake in the order., the order under section 221 of the Income Tax Ordinance, 2001 within the limitation period after repeal of the old Ordinance is neither subject-matter of appeal before the learned CIT(A) not there is any finding in this context passed by the learned CIT(A) or by the Tribunal, therefore, objection above is nothing to do with the order of the Tribunal hence there remain no question of mistake in this context in our view as this issue has not been taken at any level of the proceedings.

3. The rectification application further reveal that the Tribunal has observed that the rectified order does not refer to nature and number of contracts to arrive at conclusion whether there were multiple contracts or there was single contract exceeding limits of 30 millions details of services issued by the deducting authority are also not on record to arrive at amount of supplies at contract words and to record finding as regards single contract as against multiple contracts". In this regard the assessee has pointed out in the application that details, of contracts mentioned by the taxation officer have been 'mentioned in the order under sections 62/80C of the Income Tax Ordinance, 1979.

4. In this context we find that in the rectification order it is-held that there was no supply, hence entire receipts are arising out of contracts and on total receipts tax liability would be at the rate of 6% and for this reason the Tribunal was pleased to set aside the order. The details thereof appearing in the body of the order, dated 27-6-2006. We find that there is no mistake in the order, in fact a finding favourable to assessable has been recorded, although only Department was in appeal directing learned taxation officer to reframe the order taking into consideration, complete particulars of contract and supplies and to arrive at a correct conclusion whether here was any contract exceeding limits of Rs.30 million and further to record finding on the existence of evidence of supply if any and to distinguish it with the contract work.

5.The next point taken in the application is that order has been passed on the instructions of the Additional Commissioner of Income Tax. In 'fact this issue is also not subject-matter of present appeal and was also not raised by the assessee before the learned CIT(A), the mistake is therefore, not apparent from the record as order is silent in this context, hence there remains no question of any error in the order so far this issue is concerned.

6. The next point taken thereof is in respect of statement from Executive Engineer Halla Division showing the deductions as such the Hon'ble Tribunal was not correct in passing setting aside order. This issue is also not taken at any stage purely it is a factual controversy first time raised in rectification application, even otherwise the order does not contain any such discussion, hence cannot be taken as error in the order. It is worth-mentioning that during the course of rectification the assessee was issued a show-cause notice but failed to show his appearance, resulting in ex parte decision, therefore, there cannot be a second opinion that setting aside was almost necessary in this case.

7. Since not a single ground of present application ret]ects a finding of the Tribunal, hence the case-law in support of the ground not subject-matter of order would make no effect. In the circumstances, supra, rectification application stands dismissed.

C.M.A./109/Tax (Trib.)Application dismissed.