2020 PLP 224 (PTD)

MUHAMMAD SAJID MEHMOOD SETHI, J.

Through this Reference Application under Section 133 of the Income Tax Ordinance, 2001 ("Ordinance of 2001"), following questions of law, asserted to have arisen out of impugned order dated 30.04.2003, passed by learned Income Tax Appellate Tribunal, Lahore Bench, Lahore ("Appellate Tribunal"), have been proposed for our opinion:-- (i) "Whether on the facts and circumstances of the case the ITAT was justified to impose time limit on section 52 whereas law does not provide any limitation on such action as it is more akin to recover outstanding taxes (where no limitation is imposed) rather than assessment of taxes? (ii) Whether on the facts and in the circumstances of the case, the learned ITAT was justified to cancel the order under sections 52/86 of the Income Tax Ordinance, 1979 being time-barred on the ground that proceedings under section 52/86 of the Income Tax Ordinance, 1979 were initiated after the expiry of four years from the date of order under section 62 of the Income Tax Ordinance, 1979?"

2. At the very outset, learned counsel for applicant-department submits that matter in hand is liable to be remanded to learned Appellate- Tribunal in the light of findings recorded by Hon'ble Supreme Court of Pakistan in Messrs Pakistan Mobile Communication (Pvt.) Ltd. v. The Commissioner of Income Tax, Companies Zone, Islamabad (Civil Appeals Nos. 1091-1092/2009 and 1111-1127/2008 and 1435-1488/2008 and 229/2011).

3. When confronted learned counsel for respondent could not rebut the submission of his counterpart.

4. Arguments heard. Record perused.

5. Undeniably, the issue in hand has already been laid to dealt with by Hon'ble Supreme Court of Pakistan in Messrs Pakistan Mobile Communication (Pvt). Ltd. case, relevant part of which is reproduced hereunder:- "

14. The appeals preferred on behalf of Income Tax have been examined and the same are accepted and order impugned set aside for the reasons mentioned herein above and for the following further reasoning:- "

1. With reference to each case, facts involving common questions have not been categorized with the result that the submission made during the course of arguments on facts not dealt with by the Income Tax Appellate Tribunal could not be appreciated on the basis of which the contentions have been raised before this Court.

2. It appears after hearing the learned counsel from both the sides that I.T. Appellate Tribunal in the judgment rendered by it discussed and dealt with the cases as "Regular Assesses in default", which are confined to some cases only out of whole lot when I.T. Returns were filed by the assessees.

3. The cases in which Section 50 of the Income Tax Ordinance, 1979 for deduction of the advance Income Tax on source could be made applicable have not been specifically dealt with.

4. It has not been shown as to how and in what manner liability imposed by the Revenue was lawfully imposed and that if no limitation was provided on the subject; the Revenue whether in a reasonable time enforced the liability by issuance of notices/letters for the recoveries of demand so raised.

5. On assumption/presumption, the conclusions appeared to have been drawn by the I.T. Tribunal for enforcement the liability by the Revenue.

6. The questions of Law involved in the cases arisen out of liability being enforced by the Revenue have not been attended to and dilated upon by the Appellate Tribunal."

15. These appeals are remanded to learned Income Tax Appellate Tribunal Islamabad to decide the same afresh after affording proper opportunity of hearing to all concerned and in the light of observations as made herein above."

6. The contentions raised through instant reference application already stand discussed in the above reproduced part of the judgment. The findings recorded by the Hon'ble apex Court, in above-referred case are squarely applicable to proposed questions and when confronted learned counsel for respondent-taxpayer could not rebut the above-stated position. Hence, following the ratio settled therein, matter is remanded to learned Appellate Tribunal, with direction to decide it afresh, strictly in accordance with law and above reproduced findings, through speaking order, after hearing both the parties.

7. The instant Reference application is disposed of accordingly.

8. Office shall send a copy of this order under seal of the Court to the Appellate Tribunal as per section 133(5) of the Income Tax Ordinance, 2001. KMZ/C-16/L Case remanded.