I.T.R.A. No.304 of 2010
Mr. Justice Aqeel Ahmed Abbasi
Mr. Justice Sadiq Hussain Bhatti
Date of hearing : 20.11.2012
Date of order : 20.11.2012
Applicant : The Commissioner (Legal)
through Mr. Muhammad Altaf Mun,
Respondent : M/s E.N.I. Pakistan (M) Ltd.
Nemo for respondent
O R D E R
Aqeel Ahmed Abbasi, J Through instant reference application, following questions have been proposed by the applicant, which according to learned counsel for the applicant arise from the impugned order passed by the Income Tax Appellate Tribunal (Pakistan) Karachi, in ITA No.481/KB/2008 Tax Year 2006 U/S 122(5)(1) dated 31.10.2009.
1. Whether under the facts and circumstances of the case, the learned Tribunal was justified to hold that the issue did not fall within the category of mistake apparent on record?
2. Whether under the facts and circumstances of the case, the failure on part of the Commissioner (Appeals) to consider the decision of the Tribunal relied upon by the department, did not constitute a mistake apparent on record?
2. Learned counsel for the applicant has submitted that against an appellate order dated 20.02.2008 passed by the learned CIT (Appeals) in the instant case the department moved an application seeking rectification of the error, which was declined by the CIT (Appeals) vide order dated 30.04.2008. Being aggrieved by such order, the applicant preferred an appeal before the learned Tribunal, who vide impugned order dated 31.10.2009 has dismissed the appeal filed by the applicant, and against such order instant reference application has been filed.
3. It has been contended by the learned counsel for the applicant that both the forums below were not justified to decline the rectification of the mistake as the controversy involved in the instant case was decided in favour of the applicant by an order passed by the learned Tribunal in another case, which was not considered by the CIT (Appeals). Per learned counsel, both the orders of the appellate forums below, declining rectification, may be set-aside and the CIT (Appeals) may be directed to rectify his order accordingly.
4. We have heard the learned counsel and perused the record. From perusal of the order passed by the learned Tribunal as well as the order of the learned CIT (Appeals), it is seen that the Tribunal has concurred with the decision of the CIT (Appeals) by observing that the issue involved does not fall within the category of mistake apparent from the record as envisaged under Section 221 of the Income Tax Ordinance, 2001, as the same involves re-investigation and reappraisal of the matter. It will be advantageous to reproduce the detailed relevant findings of the CIT (Appeals), which read as follows:-
“In my view the whole issue is debatable and controversial which requires detail discussion, re-investigation and re-appraisal of matter, re-assessing of evidence, re-examination of agreements executed between the taxpayer company and the government and on basis of that new interpretation into the provision of law and facts and this exercise for sure does not fall under the limited scope of rectification of mistake apparent from the record as envisaged under section 221 of IT Ord, 2001 and the parameters of rectification laid down by Hon Supreme Court of Pakistan. Hence even on this score the rectification application moved by the department is not sustainable on facts and in law and fails.
(5) As to non providing of opportunity of hearing, while I find that Hon ITAT on facts of particular case before it in MR (R) /185 dated 04.12.2007 while the objection on principles of natural justice were discussed they the Hon ITAT chose on facts and circumstances of that particular case to adjudicate the issue on legal plane. But in case before me, my learned predecessor the CIT (A) after giving due consideration to the facts of the case as well as the legal position discussed the matter at length on pages 7 and 8 of the order and decided the matter in favour of the taxpayer holding that opportunity of hearing was not provided. Therefore, in my humble opinion re-considering this issue would tantamount to review of the appeal order and not rectification of mistake apparent from record. The Hon Supreme Court of Pakistan in a number of decisions (1959) PLD 45 (SCP), 1964 PLD 40 (SCP) etc has held that principles of natural justice is to be read into every law and the same is of great importance and necessary in discharge of justice. Hence even on this score the departmental application for rectification is not sustainable on facts and in law and fails.
(6) The learned A.R of the appellant also relied on latest decision of Karachi Bench of Hon. ITAT, Karachi dated 3 April 2008 in the case of BP Pakistan Exploration and Production Inc and argued that all issues have been extensively discussed and decided in this appeal and are in harmony with the decision of CIT (A) and the stand and basis of computation of tax adopted by the taxpayer. Unfortunately in rectification application u/s 221 of IT Ord 2001 I cannot offer any comments on decision of Hon ITAT that were passed after the date of appeal decision of my predecessor CIT (A) against which the department has moved rectification application.
As such the rectification application and addendum to rectification application moved by the tax department in this case fail and are dismissed due to reasons and findings given above.”
5. We do not find any error or illegality in the order passed by the CIT (Appeals), while rejecting the rectification application moved by the applicant, whereas the Tribunal has rightly concurred with such findings, which otherwise depicts correct legal position. The Hon’ble Supreme Court of Pakistan, in the case of M/s National Foods vs. CIT reported as (1992) 65 Tax 257 while defining the scope of rectification, has held that a mistake should be apparent from record, floating on surface and may not require any investigation or further evidence. It has been further held that a mistake which is sought to be rectified must be so obvious and apparent from record that it may immediately strike on the face of it. It may not be something which may be established by a long drawn process of reasoning on issues on which there could be conceivably two views or opinions. We may further observe that the scope of rectification is limited to the extent of rectification of an “error apparent from record” hence the said provision cannot be invoked as an alternate or substitute of an appeal, revision or review.
6. Accordingly, instant reference application having no merit is hereby dismissed in limine. Question No.1 is answered in affirmative, whereas, in view of our decision on question No.1, question No.2 has otherwise become infructuous, therefore, does not require any decision by this Court.