2005 PLP (Trib (PTD)

This miscellaneous application has been filed by the assessee-applicant for the assessment year 1998-99 for the recall of the ITAT order passed vide I.T.A. No.1582/LB of 2002, dated 30-10-2004 (Assessment year 1998-99). Both the parties have been heard and available record perused. Brief and relevant facts leading to this miscellaneous application are that the assessee-applicant, an individual, derives income from business of supplies and commercial imports. Return was filed to declare net income at Rs.42,000 for the year under consideration. The Assessing Officer after detailed reasons as discussed in the assessment order framed the assessment by making addition under section 13(1)(aa) amounting to Rs.8,75,500 by processing the case under normal law. On being aggrieved with the above treatment, the assessee went in appeal before the learned CIT(Appeals) who vide his order cited supra, set aside the issue of addition made under section 13(1)(aa) after observing that it is the practice of the bank to send their old record to the head office, so to scrutinize the same, the issue needs further probe. So, in view of this situation, the learned First Appellate Authority remanded the same back to the Assessing Officer for a fresh assessment to be framed strictly in accordance with law. The learned CIT(Appeals) upheld the assessment proceedings under normal law because the Assessing Officer started the proceedings before 30th of June. So, the learned First Appellate Authority found the same in order and upheld accordingly. Against the treatment meted out by the learned first appellate authority as quoted supra, the assessee has filed second appeal before the ITAT who disposed of the same with the following remarks:-- We have heard the rival arguments of both the sides and we are of the considered view that the treatment as accorded by the learned CIT(Appeals) to remand the case back to the Assessing Officer for fresh assessment is based on an objective appreciation of facts of the case and we are not inclined to disturb the same in view of which the treatment as accorded by the learned First Appellate Authority is confirmed and the same is hereby maintained accordingly while the issue of acceptance of the case for normal law is concerned, the same is also based on sound reasoning and we hereby maintain accordingly. The appeal of the appellant-company being devoid of merit is rejected accordingly . And now the assessee-applicant has filed the miscellaneous applications before us for the recall of the ITAT order passed on 30-10-2004 vide I.T.A. No. 1582/LB of 2002 by taking the plea that the appeal under consideration was decided without giving any weightage to the arguments and without considering the grounds of appeal put forth at the time of hearing of appeal before the learned Bench. The learned AR of the applicant also furnished a case-law in re: 2003 PTD 2841 (Lahore High Court), Lahore and we perused the same whereby the Hon ble High Court has held as under:-- Non-speaking and non-self-explanatory order

Tribunal while deciding appeal had not given its own reasons, but had reproduced Assessing Officer s order and contentions of parties

Such approach was not reflective of application of independent judicial mind and was obviously shorn of rationale and reasons for conclusions recorded in impugned order

Appellate Authority had dealt with each ground given by Assessing Officer

Duty of Tribunal as second Appellate Authority was to deal with, reflect upon and then reverse findings/reasons given by Appellate Authority

Impugned order was arbitrary and product of lack of application of mind

High Court accepted Constitutional petition and remanded appeal to Tribunal for decision in accordance with law . We have looked into the matter from all its pertinent aspects and we are of the considered view that it is necessary to examine the whole issue in the light of arguments/submissions put forth by the AR of the applicant and as set forth in the memo. of grounds of appeal before us for a clear finding in the said case and modification of the same in the light of facts and overall circumstances of the case. So, we hereby recall the ITAT order passed on 30-10-2004 vide I.T.A. No. 1582/LB of 2002 (Assessment year 1998-99) with the direction that the same should be examined so that the exact position in this case may be adopted for the disposal of the main appeal on factual position of law and ground realities in view of which the miscellaneous application filed by the assessee-applicant is hereby accepted accordingly. The miscellaneous application is allowed for the reasons as dilated above. C.M.A./379/Tax (Trib.) Application accepted.