I.T.R. A. No. 269 of 2017
Present
Mr. Justice Aqeel Ahmed Abbasi
Mr. Justice Nazar Akbar
Date of hearing : 01.11.2017
Date of order : 01.11.2017
Applicant : The Commissioner Inland Revenue,
Zone-I, LTU-II, Karachi, through
Mr. S. Mohsin Imam, Advocate.
Respondent : Nemo for the respondent
O R D E R
AQEEL AHMED ABBASI, J:- Through instant reference application, the applicant department has proposed following questions, which prima facie appears to relate to the main order dated 24.11.2016 passed by the Appellate Tribunal Inland Revenue Karachi, in ITA No. 270/KB/2014 (Tax Year 2011), whereas, the applicant department had assailed the aforesaid order of the Appellate Tribunal by filing rectification application i.e. M.A.(Rect.) No.49/KB/2017 [in ITA No. 270/KB/2014], which has been dismissed vide order dated 18.04.2017 by the Appellate Tribunal against which, instant reference application has been filed :-
“1. Whether the learned ATIR justified in their directions that minimum tax u/s 113 of the Income Tax Ordinance, 2001, would be worked out on both normal receipts (Turnover) and PTR receipts.
2. Whether the tax so worked out for 113 compared to the tax already paid/payable under both NTR and FTR and one which is higher would be the tax liability.
3. Whether the order of the learned ATIR not contradictory to the Honorable Lahore High Court decision in WP No.14896 of 2013 (M/s Malik Dal Mills) and Honourable Supreme Court decision in the case of M/s Khurshid Ahmed and others reported vide 2016 PTD 1393.
2. From perusal of the record, it appears that the questions proposed through instant reference application have already been dealt with by the Appellate Tribunal in the main order dated 24.11.2016 as referred to hereinabove, which could have been assailed by filing a reference before this Court within 90 days from the date of the order. However, instead of filing reference, applicant filed rectification application before the Appellate Tribunal under Section 221 of the Income Tax Ordinance, 2001, which has been dismissed vide impugned order in the following terms:-
“5. As for ad the contention in the application is concerned, we do not find any stuff therein to justify rectification. We find no force in the contention of learned D.R because Tribunal has decided the issue keeping in view the ratio of decisions of this Tribunal as well as Hon’ble High Court. Therefore, non appearance of department is not a mistake apparent from the record which could be believed to be against the merits of the case or calling to disturb the ratio of order passed in this case. In these circumstances present rectification application does not appear adequate to justify the rectification of order dated 24-11-2016.
6. In our humble opinion, the order dated 24-11-2016 has set forth the scheme of law in its truer spirit and we find no illegality or any error of law or facts floating on the face of the order. We conclude that there is no merit in the captioned Rectification application. The order dated 24-11-2016, sought to be rectified has comprehensively dealt all material points at issue. The applicant has not been able to point out any mistake or error apparent on face of the order thereby warranting rectification in order dated 24-11-2016, passed by this Tribunal in ITA No. 270/KB/2014. The rectification application is accordingly dismissed as being devoid of merits.”
Applicant has filed instant reference application after dismissal of the rectification application in the above terms, while proposing the questions, which do not arise from the impugned order passed by the Appellate Tribunal on the rectification application. If it is presumed that these questions arise from the main order dated 24.11.2016 passed by the Tribunal then, prima-facie instant reference application appears to be time-barred as the period of ninety (90) days had already expired, when rectification application was filed by the applicant, instead of filing reference under Section 133 of the Income Tax Ordinance, 2001 within the prescribed period. In the case of CIT v. Ateed Riaz [2002 PTD 570], a Divisional Bench of this Court has already held that reference does not lie against an order passed by the Appellate Tribunal in rectification application, if it is dismissed, and the only question, which could be raised from such order is ‘whether the Appellate Tribunal was justified to dismiss the rectification application?’.
3. It has been further held that limitation would run from the date of main order in appeal by the Tribunal, from which order, the question would be arising and not from the order on rectification, as it would amount to circumvent the legal procedure of filing a reference within prescribed period of limitation. It will be advantageous to reproduce the relevant finding of the Divisional Bench of this Court in the aforesaid case on the subject:-
“ By the above judgments, it stands settled that an order under section 156 shall have the same character and be deemed to be under the same section of the Income Tax Ordinance, under which it was originally made and was rectified by recourse to section 156 of the Income Tax Ordinance. Thus, if the Income-tax Appellate Tribunal has rectified an order under section 156, it shall also be deemed to be an order under section 135 of the Income Tax Ordinance and reference pertaining to any questions of law arising out of order under section 156 of the Income Tax Ordinance, shall lie in the same manner as out of an order under section 135 of the Income Tax Ordinance.
However, the above proposition of law is of no help to the appellant in the present case. The reason being that admittedly the question of law proposed in the reference application arises out of the original order by the Tribunal is I.T.A. No. 562/KB of 1993-94, dated 21.09.2000 and not from the order, dated 21.01.2001 in M.A. (Rect) No. 239/KB of 2000-2001 made under section 156 of the Income Tax Ordinance. No reference application was filed against the order, dated 21.09.2001 passed under section 135 of the Income Tax Ordinance, and in the order, dated 26.01.2001 disposing of the application under section 156 of the Income Tax Ordinance the learned Members of the Tribunal made no rectification in respect of issues under consideration and held that in the facts and circumstances of the case the provisions of section 156 of the Ordinance cannot be invoked. In these circumstances the learned Members of the Tribunal while rejecting the reference application under section 136 (1) of the Income Tax Ordinance, held that the question of law proposed in the reference application, does not arise out of the order rejecting the rectification application, against which the reference application was filed.”
4. In view of hereinabove facts and circumstances of the case and the ratio of the above cited judgment, we are of the considered opinion that the impugned order passed by the Appellate Tribunal Inland Revenue on the subject controversy does not suffer from any factual and legal error, which does not require any interference by this Court in its reference jurisdiction, as the questions proposed do not arise from the impugned order of rectification. Accordingly, instant reference application being devoid of any merits, is hereby dismissed in limine alongwith listed application
J U D G E
J U D G E
A.S.