Dr. ZAFAR HAIDER VS INCOME TAX APPELLATE TRIBUNAL through Chairperson, 2008 PTD-LAHORE-HIGH-COURT-LAHORE 1940 (2008)

Income Tax Ordinance (XXXI of 1979)---

----S.156---Constitution of Pakistan (1973), Art.199---Constitutional petition---Practice and procedure---Rectification of mistake---Grievance of assessee was that his rectification application was dismissed by Income Tax Appellate Tribunal without deciding three grounds raised by him---Validity---On all judicial forums, there was honoris duty to discuss and dispose of what had been argued---Pleadings in terms of three grounds with special reference to ex parte assessment were not adjudicated by Income Tax Appellate Tribunal---High Court, in exercise of constitutional jurisdiction, directed Income Tax Appellate Tribunal to decide the grounds which were omitted at the time of original decision and remanded the appeal to the Tribunal ---Petition was allowed accordingly.

Commissioner of Income Tax, Companies II, Karachi v. National Food Laboratories" 1992 SCMR 687 = 1992 PTD 570 ref.

Siraj-ud-Din Khalid for Petitioner.

Jan Muhammad Chaudhary for Respondent.

Date of hearing: 7th May, 2008.

JUDGMENT

KHAWAJA FAROOQ SAEED, J.---This is a writ petition against the rejection of a rectification application filed under section 156 of the Income-Tax Ordinance, 1979. The petitioner says that while deciding the main appeal, in its order dated 2-9-2007 the learned Tribunal ignored to decide its ground Nos.2, 3 and 6.

2. The grounds of the petition which have statedly not been disposed of were against the ex parte order as well as ignorance of the letter filed by the assessee on 2-7-1998 before the revenue department regarding discontinuation of his practice at his residence.

3. The learned Legal Advisor of the department says that the rectification can only be carried out if the mistake floats from the surface of the order and has referred the famous judgment of the Honourable Supreme Court reported as 1992 SCMR 687 = 1992 PTD 570 in the case of "Commissioner of Income-Tax, Companies II, Karachi v. National Food Laboratories". One would agree with learned Legal Advisor in principle that the parameters fixed in the above judgment must be adhered to for rectification of a mistake. However, one cannot ignore that on all judicial forums, there is an honories duty to discuss and dispose what has been argued. The pleadings in this case in terms of ground Nos.1, 2 and 6 with special reference to the ex parte assessment has not been adjudicated by the learned Tribunal.

4. Even on pointing out by the Court, the learned Legal Advisor could not prove from the order, the disposal of the grounds Nos.2, 3 and 6, which reads as follows:

"2. That the learned first appellate authority is not justified in confirming ex parte, assessment made by the Assessing Officer ignoring explanations filed on 5-3-2005 & 18-3-2005 with attendance.

3. That the learned first appellate authority is not justified in confirming the assessment made when the notice under section 62, allegedly issued by the Assessing Officer on 25-6-2005 for compliance on 30-6-2005, was never served upon the appellant.

6. That the learned first appellate authority is not justified in confirming the assessment made on the basis of alleged irrelevant inquiry, ignoring letter dated 2-7-1998 filed regarding information of closure of practice at residence."

5. The writ petition is therefore, accepted in the manner that the learned Income-Tax Appellate Tribunal is directed to dispose of aforementioned grounds which have erroneously been omitted at the time of original decision.

M.H./L-32/LCase remanded.