VS, 2007 PTD-INCOME-TAX-APPELLATE-TRIBUNAL-PAKISTAN 2397 (2007)

Income Tax Ordinance (XLIX of 2001)---

----S.122(5A)---Income Tax Ordinance (XXXI of 1979), Ss.59A & 143B---S.R.O. 633(I)/2002, dated 14-9-2002---Amendment of. assessment---Statements under S.143B of the Income Tax Ordinance, 1979 were filed for which the assessment under S.59A of the Income Tax, Ordinance, 1979 was finalized---Such assessment finalized under S.59A of the Income Tax Ordinance, 1979 was amended by invocation of provisions of S.122(5A) of the Income Tax Ordinance, 2001---Validity---Order passed under S.12(5A) of the Income Tax Ordinance, 2001 for the assessment years 2000-2001 and 2001-2002 in pursuance of S.R.O. 633(I)/2002 dated 14-9-2002 was declared not tenable in the eyes of law and orders passed were cancelled by the First Appellate Authority---Such findings were found in compliance of the settled law--Order of First Appellate Authority was not interfered with and the same was maintained by the Appellate Tribunal.

2005 PTD 1316; 2006 PTD 734; 2005 PTD (Trib.) 1321 and 2006 PTD (Trib.) 1778 rel.

Muhammad Akram Tahir, D.R. for Appellant.

Sohail Mutee Babri, I.T.P. for Respondent.

ORDER

The titled appeals are directed against the single combined order dated 22-9-2005 common grounds have been submitted in respect of identical issues involved in both the years.

2. Commonly the facts in brief of the case are that the assessment framed has been amended by invoking the provisions of section 122(5A) of the Income Tax Ordinance, 2001. For each of the year statements under section 143B of the repealed Income Tax Ordinance, 1979 were filed for which the assessment under section 59A of the repealed Income Tax Ordinance, 1979 was finalized. Such assessment finalized under section 59A of the repealed Income Tax Ordinance, 1979 was amended by invocation of provisions of section 122(5A) of the Income Tax Ordinance, 2001. In this amended assessment the respondent/assesses' was taken as running the business activity of purchase and sales which was falling under normal tax regime. The proceedings so concluded under section 122(5A) ibid were contested before the learned First Appellate Authority. The learned First Appellate Authority by recording the following findings cancelled the orders passed under section 122(5A):---

"The nature of business remained of providing services for introduction and promotion of various products manufactured by the principal, which is fairly distinguishable from commission.

The assessment made under section 59(A) as such rightly framed. The order passed under section 122(5A) are being unwarranted by the merit vacation on this score too.

It is, therefore, requested that the assessments made under section 122 of the Income Tax Ordinance, 2001 for assessment years 2000-2001 and 2001-2002 in pursuance of S.R.O. 633(I)/2002 dated 14-9-2002 may kindly be declared null and void in the light of Honourable Lahore High Court's Lahore Judgment.

The arguments of the learned A.R. have been given due consideration and found convincing. By following the decision of the Honourable High Court and ratio settled in the above said order as well as above referred S.R.O. the order passed under section 122(5A) for the years under consideration by the Assessing Officer does not tenable in the eyes of law therefore, the orders passed are hereby cancelled."

3. The learned D.R. has opposed such findings but failed to support with any judgment or order passed at the appellate forum.

4. The learned A.R. has submitted that findings recorded at the first appeal stage are in compliance to the judgments of the Honourable Higher Judiciary duly followed by Tribunal with citations as:--

2005 PTD 1316, (Karachi High Court), 2006 PTD 734 (Karachi High Court), 2005 PTD (Trib.) 1321 and 2006 PTD (Trib.), 1778.

The learned A.R. has also submitted that this Tribunal vide order with citation as 2006 PTD (Trib.) 1778 has followed the findings as recorded in the citations referred supra.

5. We have heard both the parties and have also perused the available record. We find that the impugned findings are in compliance to the judgments of the Honourable High Court, which have been also followed by this Tribunal. Therefore, no interference is called for at the level of this Tribunal. The order of the learned First Appellate Authority is maintained.

6. The departmental appeals fail.

C.M.A./83/Tax(Trib.)Appeals dismissed.