1997 PLP (Trib (PTD)

The assessee, an AOP, derives income from grinding of gypsum to be used in pottery industry. In its return of income for the Assessment year 1993-94 the assessee declared its net income at Rs.30,

000. The return was not accompanied by the computation chart. In response to the notice under section 61 of the Income Tax Ordinance the assessee attended at the assessing officer's office but did not produce any books of accounts on the plea that none was being maintained. Keeping in view the history of the assessments made on the assessee the assessing officer made assessment for the Assessment year 1993-94 at net income of Rs.1,35,000 which was computed as under;

Sales (Estimated) Rs.7,00,000 G.P. @ 25%0 Rs.1,75,000 Less Expenses (Estimated) Rs. 40,000 Balance net income Rs. 1,35,000

2. On assessee's appeal the Appeal Commissioner reduced the sales to Rs.6,50,

000. The remaining parts of the assessment order were confirmed.

3. Through this appeal the I.T.O. has objected to the order of the Appeal Commissioner on the ground that he was not justified in reducing the sales from Rs.7,00,000 to Rs.6,50,000. .

4. We have heard Mr. Muhammad Rjaz, D.R. for the I.T.O. None has appeared for the assessee in spite of the fact that the notice of hearing of appeal has been served at it.

5. In response to the notice of hearing of appeal the assessee has sent a copy of the order, dated 3-1-1996 passed by the Member (Judicial Income Tax) on assessee's revision petition made under section 138 of the Ordinance. The order shows that the learned Member has been pleased further to reduce the sales to Rs.6,00,

000. Subsection (2) of section 138 of the Ordinance, so far as material and with necessary annotation, provides that the Central Board of Revenue shall not revise any order under subsection (I) if, the order has been made the subject of an appeal to the Income Tax Appellate Tribunal. Since the order sought to be revised by the Member (Judicial), C.B.R. had been made the subject of an appeal before this Tribunal by .the I.T.O. the order made by the said Member was plainly without jurisdiction. It is a trite rule of law that an order made without jurisdiction does not exist in the eye of law and anyone coming across any such order is required to ignore it. The Member, Judicial, C.B.R.'s order being absolutely devoid of any legal backing is treated to be non-existent. This Tribunal in its decision reported 1993 PTD (Trib.) 234 p.242-E has held: "The judicial authority is firm that a void order need riot to be formally set aside. It is not only the right or discretion but is the duty of every authority coming across void order to ignore it. " Following the above precedent we do same thing with regard to the Member's Order.

6. It appears that the learned Member while exercising her powers under section 138 of the Income Tax Ordinance, 1979 did not check the position from the Income Tax Officer whether or not the order sought to be revised had been subject of appeal before the Tribunal.

7. Regarding the merits of the case we are of the view that the Appeal Commissioner was not justified to reduce the sales. The estimation of sales and the determination of net income made by the assessing officer for the year under appeal appears to be reasonable.

8. Accepting the I.T.O.'s appeal the Appeal Commissioner's order is vacated and that of the I.T.O. is restored. M.B.A./278/T Order accordingly.