2019 PLP 1559 (PTD)

This order shall also dispose of ITR No. 164274 of 2018 titled "Messrs Ghani Glass Limited v. Commissioner Inland Revenue and another" as common questions of law and facts are involved in these cases.

2. Through this Reference Application under Section 133 of the Income Tax Ordinance, 2001 ("the Ordinance of 2001"), following question of law, arising out of impugned consolidated order dated 04.01.2018, passed by learned Appellate Tribunal Inland Revenue, Lahore Bench, Lahore ("Appellate Tribunal"), has been pressed and argued for our opinion:-- "Whether under the facts and circumstances of the case, limitation as it stood at the time of filing of the return will apply to the case of the petitioner in the light of binding verdicts Commissioner of Income Tax v. Dharamchand Dalchang [1 ITC 264 (Nagpur)] and landmark order of this Hon'ble Court in CIR v. Maj. Gen. (R) Dr. C.M. Anwar and others (2015 PTD 424)?"

2. Brief facts of the case are that statement under Section 115(4), filed by applicant-taxpayer, was considered erroneous and the assessment was amended under Section 122(5A) of the Ordinance of 2001 vide order-in-original dated 30.06.2011. Feeling aggrieved, applicant-taxpayer filed appeal before learned Commissioner (Appeals), which was allowed vide order dated 07.06.2012. Being dis-satisfied, respondent-department filed appeal before learned Appellate Tribunal, which has been disposed of vide order dated 04.01.2018. Hence this Reference Application.

3. Learned counsel for applicant-taxpayer submits that material aspects of the matter have not been dilated upon by learned Appellate Tribunal, hence, impugned order, being non-speaking, is not sustainable under the law.

3. When confronted, learned counsel for respondent-department has defended the impugned order.

4. Heard. Available record perused.

5. The stance of applicant-taxpayer is that it filed statement under Section 115(4) on 31.12.2005 and period of five years expired on 20.12.2010, therefore, proceedings culminated on 30.06.2011 are barred by limitation; that statement under Section 115(4) is not an assessment order in terms of Section 120 of the Ordinance of 2001, thus, provisions of Section 122(5A) could not be applied; and that explanation to Section 169(3) of the Ordinance of 2001 was inserted by the Finance Act, 2010, so, same cannot be applied retrospectively to Tax Year 2005. Perusal of record shows that learned Appellate Tribunal has not given any finding on the above core issues/submissions of the applicant-taxpayer, hence, impugned order does not appear to be in conformity with the provisions of Section 24-A of General Clauses Act, 1897 and law laid down by Hon'ble Apex Court in "Commissioner of Income Tax, Companies Zone-II, Karachi v. Messrs Sindh Engineering (Pvt.) Limited, Karachi" (2002 SCMR 527 = 2002 PTD 419).

6. In view of above, we are inclined to set-aside the impugned order and matter is remanded to learned Appellate Tribunal for decision afresh through speaking order, strictly in accordance with law, after both the parties.

7. This Reference Application, along with connected reference application, is disposed of accordingly.

8. Office shall send a copy of this order under seal of the Court to learned Appellate Tribunal as per section 133(5) of the Income Tax Ordinance, 2001. KMZ/G-6/L Case remanded.