2005 PLP 2537 (PTD)

MIAN HAMID FAROOQ, J.

This single order will dispose of R.T.R. No.204 of 2003 titled "The Commissioner of Income Tax v. Messrs Rizwan Brothers, International Traders" R.T.R. No.205 of 2003 titled "The Commissioner of Income Tax v. Messrs Rizwan Brothers, International Traders" and R.T.R No.206 of 2003 titled "The Commissioner of Income Tax v. Messrs Rizwan Brothers, International Traders" as issue involved and the parties in all these references are the same.

2. The petitioner (Revenue) has filed three reference petitions under section 133(4) of the Income Tax Ordinance, 1979 (now repealed), pertaining to the years 1,987-1988 to 1989-1990, arising from the order of ITAT, dated 31-8-2001 in Tax Appeals Nos. 2220, 2221, and 2222/LB of 2001. The petitioner sought from the Income Tax Appellate Tribunal, through applications numbers 507, 508 and 509/1-13 of 2002, filing of reference to this Court on the following questions of law:-- (a) Whether on the facts and in circumstances of the case the learned ITAT is justified to cancel the order passed under section 66A of the Income Tax Ordinance? (b) Whether the learned ITAT is justified to maintain the order of the Assessing Officer, while the assessee is not entitled for credit of tax deduction under section 50(4) and 50(5)? (c) Whether on the facts and circumstances of the case any person can claim credit of tax deduction under section 50(4) and 50(5) on imports and supplies made on behalf of another person when he is an indenter and not importer/supplier?

3. The reference applications (bearing No.507, 508 and 509/LB of 2002) were filed before Appellate Tribunal on 27-4-2002, after the delay of four months, in respect of impugned order of ITAT, dated 31-8-2001, passed in Appeals Nos.2220, 2221 and 2222/LB of 2002. The order was served upon Commissioner/petitioner on 19-9-2001. Learned Appellate Tribunal by order, dated 30-7-2002, dismissed the reference applications, being barred by time and devoid of any merit.

4. The Revenue thereafter filed the direct reference. The petitioner once again failed to file reference in this Court within the stipulated period. An application under section 5 of Limitation Act for condonation of delay was filed attributing the delay to the resignation of legal advisor.

5. The petitioner sought the condonation of delay before the Appellate Tribunal pertaining to filing of application for reference, on the ground that application for rectification of order in original, was filed before the learned Tribunal, and the appellate Tribunal by order, dated 27-4-2002 dismissed the same. The petitioner urged before ITAT that the application for reference be treated in time, on this score. Learned counsel for Revenue /petitioner repeated the same argument to justify the delay in moving the application for filing the reference. Mr. Zia Haider Rizvi, the learned counsel for Respondent No.1 has referred to Hong Kong Chinese Restaurant v. Assistant Commissioner Income Tax (2002 PTD 1878) to contend that dismissal of application for rectification, amendment or correction of an order does not give rise to either fresh cause of action or to a question of law giving new lease of life to the order which has become barred by limitation.

6. An order passed/recorded under section 135 of the repealed Ordinance, 1979, can be rectified, amended or corrected under section

156. The period for rectification of mistake under section 156(4), is four years from the date of the order sought to be amended. The period of limitation for filing the application for submission of reference before this Court is 90 days, of receipt of order ITAT, as contemplated in section 136(1) of the repealed Ordinance, 1979. If unsuccessful application for rectification is considered as fresh cause for the purposes of limitation, then it renders the period of limitation prescribed for appeal under section 136(1), as useless.

7. We fully agree with the principles laid down by a learned Division Bench of this Court in Hong Kong Chinese Restaurant case (supra). An unsuccessful application for rectification under section 156 does not in any manner give rise to a fresh cause of action and the learned Appellate Tribunal has rightly declined to entertain the application of the Revenue for submission of reference to this Court, being time-barred. Since the application under section 136(1) before the Tribunal is barred by limitation, as also the present reference under section 133(7), therefore, we will not consider the other questions, on merits. The applications for direct reference are dismissed. S.A.K./C-128/L Application dismissed.