2004 PLP 1027 (PTD)

This is an application under section 136(2) of the Income Tax Ordinance, 1979 praying for consideration and answer of the following question of law which statedly arose out of the order of the Income Tax Appellate Tribunal, Lahore Bench, Lahore, dated 10-3-2001:-- Whether on the basis of facts and circumstances of the case the learned ITAT was justified in deleting the penalties levied for default of section 142 of which statement is clearly prescribed in Rule, 201 of the Income Tax Rules, 1982 by relying on a judgment dealing with non-applicability of section 142 on prescribed statement on Rules 53, 61 and 61-A .

2. The respondents a private limited company engaged in running a Chinese Restaurant. For the charge years, 1994-95 and 1995-96 and assessment under section 52 was framed on the ground that no deduction at source was made by the assessee under section

50. Also the Assessing Officer imposed penalty under section 108(b) of the Ordinance, 1979 on account of failure of the assessee to have furnished a statement under section 142 as on 1st of September, 1994 and 1st of September, 1995. Learned CIT(A) by relying upon a judgment of this Court recorded in Writ Petition No.7292 of 1996, dated 16-6-1996 cancelled the assessment framed under section

52. The order so recorded was maintained by the learned Tribunal on 23-9-2002.

3. Thereafter the Revenue made an application for reference of the aforesaid question to this Court which was declined by the learned Tribunal on 10-3-2001. The operative para. 4 of the order reads as under:-- For the charge year, 1994-95 the A.R. of the respondent has asserted that capital of the company was less than 1.5 million. Therefore, the statement was not necessary for the charge year, 1995-96 the capital was more than 1.5 million but the amendment, in Rules in 1995 vide S.R.O. did not envisage the filing of return for this year. Therefore, for this year also filing of return was not compulsory. The respondent is out of the mischief of the filing of returns. Even otherwise the questions which have been framed does not arise out of the impugned order of this Tribunal.

4. After hearing the learned counsel for the petitioner we are of the view that the question as framed does not arise out of the order of the Tribunal and therefore, we will decline to admit the same for our consideration for two reasons:-- Firstly, the original assessment under section 52 of the Income Tax Ordinance, 1979 was cancelled by the CIT(A). That cancellation was maintained by the Tribunal and the Revenue has not challenged that cancellation by way of either a reference application or a petition before this Court under section 136(1) of the Income Tax Ordinance, 1979. Secondly, before the Tribunal at the time of hearing of appeal the issue as to an obligation of the assessee to file a statement under section 142 was never mooted nor it was ruled upon by the Tribunal. On the other hand while disposing of the reference application, as noted above, the learned Tribunal recorded a finding of fact that no statement under section 142 was required to be filed by the assessee for the two assessment years involved viz. 1994-95 and 1995-96 in view of the capital involved in the business. That finding has not been challenged on any legal basis nor the same is alleged to be against record.

5. Therefore, as stated above, the question as framed cannot be said to have arisen out of the order of the Tribunal.

6. Answer declined. H.B.T./C-45/L Order accordingly.