VS, 2010 PTD-INCOME-TAX-APPELLATE-TRIBUNAL-PAKISTAN 415 (2008)

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

----S. 156---Rectification of mistake---Miscellaneous application for recall of order---Opportunity of being heard---Order was recalled by the Appellant Tribunal on the ground that Department be heard on merit and be not penalized due to single default of the Departmental Representative.

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

----S.156---Rectification of mistake---Error in pleadings---Appeal was dismissed by the Appellate Tribunal being hit by limitation---Application for recall of order on the ground that Appellant Tribunal had passed correct order by taking the date of communication as 3-3-2007 which was inadvertently typed as 3-3-2007 instead of 9-3-2007 which was the date of receipt of order passed by the First Appellate Authority---Validity---Error, even not considered as an afterthought, lies in the pleading adopted by the Department---Rectification was to be made in the Appellate Tribunal's order and it could not be made in the pleading of the revenue---Pleadings could have been amended before passing of Appellate Tribunal's order and not after that---No error in the Appellate Tribunal's order having been found, request made by the Revenue was declined.

Faisal Mushtaq, DCIT/DR and Mazhar Hussain Raja, I.O. for Applicant.

Mushtaq Ahmed Vohra, F.C.A. for Respondent.

ORDER

The Department has filed this Miscellaneous Application for the restoration of M.A.(R) No.222/(IB) of 2007 for the assessment year 2001-02 in case of Messrs Al-Catel Pakistan Limited which was dismissed in default on the ground that absence of the learned DR was not wilful. Thereafter the Department has referred the following case law:-

(i) PLD 1990 SC 1092 Amanullah Khan v. The Federal Government of Pakistan.

(ii) 2004 PTD 2187 Abu Bakar Siddique and others v. Collector of Customers, Lahore and others.

(iii) 1974 SCMR 107

2. We have heard the respective contentions of the parties. 11 grounds have been taken by the Department which are in fact decided case law by different forums and the main thrust of the case that the Department be heard on merit and be not penalized due to single default of the learned DR. Hence we deem it appropriate to recall the order dated 7-2-2008 and restore the MA(R) No.222(IB)/2007 dated 7-2-2008 which is also heard today.

MA(R) No.222/(IB) of 2007

3. This Miscellaneous Application had been filed against the Tribunal order dated 28-8-2007 passed in I.T.A. No.267(IB of 2007 for the assessment year 2000-01 which was dismissed as being hit by limitation. The Department now says that the Tribunal has passed the correct order by taking the date of communication as 3-3-2007 which was inadvertently typed as 3-3-2007 instead of 29-3-2007 which was the date of receipt' of the order passed by the learned First Appellate Authority dated 4-1-2007.

4. Needless the mention here that there is no error in the Tribunal's order. The error, for the sake of arguments even not considered as an after thought lies in the pleading adopted by the Department. So rectification is to be made in the Tribunal's order and it cannot be made in the pleading of the revenue. The pleadings could have been amended before passing of the Tribunal's order and not after the passing of the Tribunal's order. So, there is no error in the Tribunal's order. Therefore, we have been left with no alternative except to decline to accept the request made by the Revenue.

5. Resultantly M.A.(R) No.222/(IB) of 2007 for the assessment year 2000-01 is hereby dismissed.

C.M.A./176/Tax(Trib.)Order accordingly.