COMMISSIONER INLAND REVENUE VS HUNZA GHEE INDUSTRIES (PVT.) LTD., 2017 PTD-LAHORE-HIGH-COURT-LAHORE 1024 (2017)

Income Tax Ordinance (XLIX of 2001)---

----S. 133---Reference to High Court---Jurisdiction of High Court under S. 133 of the Income Tax Ordinance, 2001---Determination as to whether a question of law was made out ---Scope---Taxpayer had asserted a question of law and contended that the same arose out of the order of the Appellate Tribunal---Validity---Perusal of record revealed that no question of law had arisen in the present reference and the decision of the Appellate Tribunal did not call for any interference---Reference was decided against the taxpayer accordingly.

Sarfraz Ahmad Cheema for Petitioner.

ORDER

C.M. No.278 of 2016.

This is an application for restoration of the titled Reference dismissed for non-prosecution on 26.01.2015.

C.M. No.279 of 2016

2.This is an application for condonation of delay in filing the application for restoration of the titled Reference.

3.For the reasons stated in the CMs duly supported with an affidavit, both the applications are allowed, the delay is condoned and the titled Reference is restored to its original number and is fixed for hearing today with the consent of the learned counsel for the parties. Let office fix this Reference for hearing today.

Main Case.

4.This is a Reference under section 133(1) of the Income Tax Ordinance, 2001 ("Ordinance").

5.Following questions of law have been proposed for our opinion, which are asserted to have arisen out of order dated 18.12.2009 passed by the Income Tax Appellate Tribunal, Lahore Bench, Lahore ("Appellate Tribunal"):--

i)"Whether the learned ATIR was justified to extend the scope of powers of rectification to a mistake that is detected from a judgment of a Court in another case announced subsequent in time to the order sought to be rectified?

ii)"Whether the learned ATIR was justified to accept the appeal against refusal of the Taxation Officer to rectify the order for levy of WWF when there was no mistake apparent from record?

iii)"Whether an order by an assessing authority that is at variance with a subsequent appellate order constitutes a mistake in terms of section 221 of the Income Tax Ordinance?

6.The Applicant contests the decision of the Appellate Tribunal on the ground that the decision of the Peshawar High Court came after the Respondent was charged with WWF, even though he paid minimum tax under section 80DD of the Ordinance.

7.We have heard the learned counsel and gone through the record and find that no question of law arises in the instant Reference. The issue involved is whether WWF can be imposed in the case where tax was deducted under section 80DD. The Appellate Tribunal has rightly concluded that the judgment of the court had to be followed, especially where the department had taken a wrong decision by imposing WWF, even though it was not permissible under the circumstances. The decision of the Appellate Tribunal does not call for interference.

8.Under the circumstances, we decline to exercise our jurisdiction. Reference application is answered in negative.

9.Office shall send a copy of this order under seal of the Court to the Appellate Tribunal as per section 133(5) of the Ordinance.

KMZ/C-9/L Order accordingly.