VS, 2008 PTD-INCOME-TAX-APPELLATE-TRIBUNAL-PAKISTAN 666 (2008)

Income Tax Ordinance (XLIX of 2001)---

----S.221---Rectification of mistake---Miscellaneous application before Appellate Tribunal for recall of order---Application was dismissed by the Appellate Tribunal as the order had been passed after hearing both the sides as well as treatment meted out by the First Appellate Authority was upheld by the Appellate Tribunal against which no rectification application was filed before the First Appellate Authority as no mistake was apparent from the record.

1976 PTD 109 rel.

Mrs. Sabiha Mujahid, D.R. for Applicant.

Ahmad Nadeem Ahsan for Respondent.

ORDER

The department through this Miscellaneous Application has requested for the recalling of the order of this Tribunal, dated 7-8-2007 passed in the I.T.A. No.7438/LB/2005 (Assessment year 2002-2003) on the following grounds:---

"That the ITAT has held that the return for the year 2002-2003 falls within the ambit of S.A.S. but the learned ITAT has not adjudicated the departmental ground regarding setting apart and selection for total audit as the assessee has suppressed receipts/income.

That the learned ITAT has not appreciated the facts of the case on merits.

That the mistake is apparent from record hence, liable to rectification under section 221 of the Income Tax Ordinance, 2001."

We have heard the learned representatives from both the sides and have also perused the above referred order of this Tribunal, dated 7-8-2007 and the other relevant record of the case. We have found that on behalf of the assessee no apparent mistake floating from the order of this Tribunal or the record of the case has been pointed out by the applicant/department.

On behalf of the respondent/assessee it has been contended that there is no provision in the Ordinance to review the order passed by this Tribunal and the order once decided on merits, cannot be re-called except there is a glaring and apparent mistake in the order or the order has been passed without affording the reasonable opportunity of being heard but in the present case the above referred order has been passed alter hearing the learned representatives from both the sides. The learned counsel has contended that this Tribunal in the above referred order has upheld the treatment meted out by the learned C.I.T. (A) against which no rectification application was filed before the learned C.I.T. (A) as there was no mistake apparent from the record. The learned counsel in this regard has placed reliance on the decision of the Indian Supreme Court reported as 1976 PTD 109 wherein it has been held that:---

"A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process. It has further been held that where there may conceivably two opinions cannot be said to be an error apparent on the face of the record and a decision on debatable point of law is not a mistake apparent from the record."

After, considering all the facts of the case and the legal position, we find no merits in the application filed by the applicant/department which is, therefore, dismissed.

C.M.A./11/Tax (Trib.)????????????????????????????????????????????????? Application dismissed.