2007 PLP 774 (PTD)

This appeal under section 136 of the Income Tax Ordinance, 1979 arises from the order of the Tribunal, dated 1-12-1998 whereby the appeal filed by the Department was dismissed.

2. Brief facts leading to the filing of this appeal are that the original assessment of the respondent assessee for the year 1988-89 was finalized on 30-6-1991. The said proceedings were provisionally dropped and filed. Subsequently the Department on receiving information that respondent assessee had also received certain rental income allegedly issued notices under section 65 of the Income Tax Ordinance, 1979 which were allegedly served through affixation. Subsequently notice under sections 61/58(1) of the Income Tax Ordinance, 1979 was also issued. Eventually ex parte assessment was framed against the assessee by adding the alleged rental income as well as the additions under section 13(1)(d) of the Income Tax Ordinance, 1979. Aggrieved the assessee filed an appeal whereupon the CIT(Appeals) cancelled the order on the ground that the notice under section 65 of the Ordinance was not served upon the respondent assessee. Aggrieved the Department invoked the jurisdiction of the Tribunal and the appeal filed by the Department in this behalf was dismissed vide order, dated 4-12-1999 in the following terms: "We have scanned through the order sheet entry placed on record by the learned A.R. for the assessee which supports the contention of the learned A.R. because there is no mentioning of any order with regard to service of notice through affixture. Permission to reopen the case was granted on 23-6-1994 and on the very same date notice has been issued under section 65 for the years, 1988-89 and 1989-90 for 27-6-1994. Thereafter, order sheet entry shows that on 30-10-1994 notices under section 61 were issued for 7-11-1994. Perusal of this clearly shows that no service of notice was ever done through affixture. In this view of the matter we do not find any legal infirmity with the order passed by the learned CIT (A) which is quite in consonance with law. The impugned order passed by the learned CIT(A) is, therefore, upheld. The departmental appeal being devoid of any merit stands dismissed."

3. The learned counsel for the department has been heard and the record perused.

4. The sole contention raised by the learned counsel for the Department is that in fact notice under section 65 of the Income Tax Ordinance, 1979 was served upon the respondent assessee. The factum of the service of such notice or otherwise is obviously a question of fact and cannot be adjudicated upon by this Court while exercising its instant jurisdiction. No question of law arises requiring expression of opinion by this Court. Consequently this appeal being misconceived is hereby dismissed. M.H./C-5/L Appeal dismissed.