2005 PLP (Trib (PTD)

MUHAMMAD ASHFAQ BALOCH (JUDICIAL MEMBER).‑‑ Instant M.A. rectification application is filed by the Commissioner of Income Tax L.D. L.T.U. Karachi whereby sought for rectification in order; dated 10‑5‑2003 passed by this Tribunal in R.A. No. 180/KB of 2003 (assessment year 1998‑99).

2. Brief facts so far as relevant for disposal of present M.A. are that the original assessment was finalized under section 62 of Income Tax Ordinance, 1979 by the Income Tax Panel, Cos. III, Karachi. Being aggrieved with the assessment order, the assessment preferred appeal before the learned CIT (Appeals‑III), Karachi who set aside the order for de novo proceedings. Thereafter, the assessment was completed under sections 132/62‑ by the Income Tax Penal Cos. III, Karachi. Assessee again filed the appeal before the learned CIT(Appeals‑III) Karachi, who upheld the proportionate disallowance of Administrative and selling expenses and the addition made under section 12(18) of the Income Tax Ordinance, 1979. Assessee being aggrieved with the order of the learned CIT(A) preferred the appeal before this Tribunal, wherein respondent was learned CIT(Appeals‑III), Karachi. The Tribunal had decided the assessee's appeal vide order in I. T. A. No. 1091/KB of 2002 (Assessment year 1998‑99), dated 29‑6:2002. Copy of the order was delivered in the office of the CIT Cos. IV. Karachi on 19‑11‑2002. From where the copy of the order was received in the office of the concerned Commissioner i.e. CIT Cos. III, Karachi on 27‑1‑2003, Thereafter the reference application was filed which was dismissed as time‑barred.

3. Mr. Javed Iqbal Rana learned representative of the applicant department has argued that in memo. of appeal respondent was learned CIT(A) Cos. III, Karachi but this Tribunal erroneously delivered the copy of the order, dated 26‑9‑2002 in the office of learned CIT, Cos. IV, Karachi on 19‑11‑2002, ‑from where the copy of the order was received by the learned CIT Cos. III, Karachi on 27‑1‑2003 and period of limitation started there from 27‑1‑2003 and not from 19‑11‑2002. This is a mistake apparent from record which may be rectified.

4. On the other hand Ms. Yasmeen Ajani, FCA, learned representative of the respondent/assessee, has opposed the arguments advanced by the learned D.R. and contended that this Tribunal directed the department for filing the condonation application but when the department failed to file the condonation application their departmental Reference Application was dismissed as time‑barred.

5. We have considered the arguments of both the parties and have also perused the record. From perusal of the record it appears that the I.T.A No. 1091/KB of 2002 was filed with the CIT Cos. III, Karachi as respondent but copy of the order wigs delivered in the office of learned CIT, Cos. IV, Karachi on 19‑11‑2002, who admittedly was neither respondent nor held jurisdiction over the case. Thereafter from the office of learned CIT Cos. IV, copy of the order was received by the CIT. Cos. III, Karachi on 27‑1‑2003. Before the expiry of limitation of period, R.A. was filed by the CIT., Cos. III, Karachi. Learned D.R. on this point relied upon the judgment of Hon'ble High Court of Sindh at Karachi, reported as (2000 PTD 344) CIT v. Maqsood A. Razzak, it was observed as under:‑‑ "Starting point of limitation for filing appeal would be governed from the date when the judgment of the Appellate Tribunal was put up or brought to the notice of the Commissioner, who was authority to decide as to whether appeal was to be filed against the order of the learned Tribunal or not and that service on Inspector or anybody else would not amount of service of Commissioner as envisaged by Rule 34 of the ITAT Rules, 1948. Period of limitation for filing of appeal would be calculated not from the date on which the income Tax Inspector had received the copy of the order of the Tribunal but from the date when the order of the Appellate Tribunal was brought to the notice of the concerned Commissioner."

6. As now it is admitted position that copy of the order was not properly served by the Tribunal on the respondent‑Department therefore, the limitation starts from the date when the copy of order was received by the respondent.

7. In view of above circumstances, we have reasons to recall the order, dated 10‑5‑2003 passed by this Tribunal in R.A. No. 180/KB of 2003, pertaining to assessment year, 1998-99 and direct the Roster Section to re‑fix the reference application for re‑hearing. C.M.A./304/Tax (Trib.) Order accordingly.