VS, 2009 PTD-INCOME-TAX-APPELLATE-TRIBUNAL-PAKISTAN 888 (2008)

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

----S.156---Rectification of mistake---Additional grounds---Department filed additional grounds through miscellaneous application, drawing attention of the Appellate Tribunal that the same had not been made part of the main order though filed earlier---Validity---Authorized Representative of the Department denied any information regarding filing of miscellaneous applications for additional grounds with further categorical denial that the department had not provided any copy prior or after the filing of the same in the Appellate Tribunal---Main appeals had been disposed of after hearing both the parties and department was particularly represented by the D.R. who failed to point out submission of any additional grounds at that time.

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

----S.156---Rectification of mistake---Ignoring of binding judgment of High Court---Mistake apparent from record---Applications seeking rectification were filed by the assessee before the Taxation Officer relying upon a judgment of the High Court which was available at the time of framing assessment by the Assessing Officer but the findings of High Court with the citation were ignored---Held, First Appellate Authority rightly allowed relief as ignoring any binding judgment of High Court was a mistake apparent from the record.

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

----S.156 (3)---Income Tax Ordinance (XLIX of 2001), S.221---Rectification of mistake---Assessment year 2000-01---Limitation---Expiry of limitation at the time of repeal of Income Tax Ordinance, 1979 and on promulgation of Income Tax Ordinance, 2001---Effect---Limitation prescribed under 5.156 (3) of the Income Tax Ordinance, 1979 had not expired at the time of repeal of Income Tax Ordinance, 1979 and on promulgation of Income Tax Ordinance, 2001---Limitation as prescribed under S.221 of the Income Tax Ordinance, 2001 had governed it by extending the period of limitation by one year.

Ghazanfar Hussain, D.R. for Appellant.

Asim Zulfiqar Ali, A.C.A./A.R. for Respondent.

ORDER

EHSAN-UR-REHMAN, (JUDICIAL MEMBER).---Through the titled misc. applications, it has been prayed that the consolidated ITATs order dated 17-4-2008 passed in M.A. (AG) Nos. 91 to 95/LB/07 for Assessment Years 2000-01, 2001-02, 2002-03 and Tax Years 2003 & 2004 may be recalled for deciding the matter on merits.

2. Brief facts are that the department filed misc. applications seeking taking up the additional grounds. Such applications when were placed before this Division Bench on 16-4-2008, they were dismissed being infructuous as main appeals bearing I.T.As. Nos.855 to 859/LB/06 were disposed of vide combined in ITATs order dated 7-11-2007. Hence, the prayer to admit the additional grounds for hearing the main appeals became a belated attempt and these met their fate accordingly.

3. Now, the department has drawn our attention through the titled applications that the following additional grounds though filed earlier on 30-8-2007 had not been made part of the main order:--

"(i) That the learned CIT(A) was not justified to entertain appeal filed by the taxpayer against rejection of rectification application as no mistake resulted out of assessment order. Since the assessing officer accepted declared tax charged on export vide order dated 10-4-2001.

(ii) That the learned CIT(A) was not justified to entertain appeal filed by the taxpayer which was hit by limitation as provided under section 156(3) of the Income Tan Ordinance, 1979".

4. With such submissions ultimately, the attention has been drawn that mistake is apparent from the ITATs order dated 17-4-2008, passed in M.A. for Additional Grounds.

5. On this issue, we have heard both the representatives and perused the available relevant record.

6. As far as the ITATs order dated 17-4-2008 disposing the misc. applications bearing M.A.(AG) No.91 to 95/LB of 07 is concerned, the departmental contention that there is mistake is incorrect. The learned A.R. denied any information regarding filing of misc. applications for additional grounds in the Tribunal with further categorical denial that the department has not provided any copy prior or after the filing of the same in the Tribunal. The learned D.R. also could not refute such submissions before us by the learned A.R. The main appeals have been disposed of vide ITAT's order dated 7-11-2007 after hearing both the parties and department was particularly represented by the D.R. The teamed D.R. at that time failed to point out submission of any additional grounds.

7. As far as the merits of additional grounds are concerned, we do not have any hesitation in taking up here. The additional grounds as reproduced supra at serial No.(i) ibid, is devoid of any merit for the reason that the applications seeking rectification are filed by the assessee before the Taxation Officer relying upon a judgment of the High Court which was available at the time of framing assessment by the assessing officer but the findings of the Hon'ble High Court with the citation were ignored. It is on the basis of such findings, the learned first appellate authority allowed the relief as ignoring any binding judgment of the Hon'ble High Court is a mistake apparent from the record where the learned first appellate authority has rightly allowed the relief. This ground has thus been properly adjudicated in the main appeals. So keeping in view this ground, there is hardly any justification for yet pleading that it has not been adjudicated upon. As far as second ground is concerned which has relevance only in assessment year 2000-01, here the limitation prescribed under section 156(3) of the repealed Income Tax Ordinance would have not expired at the time of repeal of Income Tax Ordinance, 1979 and on promulgation of the present Income Tax Ordinance, 2001. Then, the limitation as prescribed under section 221 has governed it by extending the period of limitation by one year. It is important to mention here that it is a cyclostyle type of the ground without considering that it is not relevant in the rest of the impugned years. The fact has been duly acknowledged by the learned D.R. before us. So keeping in view the discussion supra, the departmental misc. applications being devoid of any merit are dismissed.

C. M. A. /35/Tax(Trib.)Applications dismissed.