Miscellaneous application

2012 PTD 1628 INLAND REVENUE APPELLATE TRIBUNAL OF PAKISTAN Judicial Precedent

Ss.221, 132(3) & 111Rectification of mistakeMiscellaneous application

Appellate Tribunal had upheld the treatment meted out by the First Appellate Authority regarding deletion of additions made under S.111 of the Income Tax Ordinance, 2001 as the additions had been made in violation of the mandatory requirements of provisions of law under S.111(2) of the Income Tax Ordinance, 2001; and assessment framed by the Taxation Officer was annulled

Revenue contended that Appellate Tribunal had exceeded its jurisdiction as neither there was any ground of appeal requesting for annulment of the assessment nor the ground in that regard was framed by the taxpayer

Validity

Subsection (3) of S.132 of the Income Tax Ordinance, 2001 provided that where the appeal related to an assessment order, the Appellate Tribunal may, without prejudice to the powers specified in subsection (2) of S.132 of the Income Tax Ordinance, 2001, pass an order to affirm, modify or annul the assessment order; or remand the case to the Commissioner or the First Appellate Authority for making such enquiry or taking such action as the Appellate Tribunal may direct

Under subsection (4) of S.132 of the Income Tax Ordinance, 2001, Appellate Tribunal shall not increase the amount of any assessment or penalty or decrease the amount of any refund unless the taxpayer had been given a reasonable opportunity of showing cause against such increase or decrease, as the case may be

Deletion of additions had been upheld being made in violation of the mandatory provision of law i.e. S.111(2) of the Income Tax Ordinance, 2001, which could not be sustained in law

Assessment being illegal had rightly been annulled which obviously did not mean that the annulment of the order of the Taxation Officer restrained him from proceeding further from possible additions in relevant tax year as per law and rule keeping in view the provisions of S.111(2) of the Income Tax Ordinance, 2001 after affording reasonable opportunity of being heard to the taxpayer

Revenue did not pointed out any mistake apparent from record

Miscellaneous application filed by the Department was dismissed by the Appellate Tribunal.

2011 PTD 767 INLAND REVENUE APPELLATE TRIBUNAL OF PAKISTAN Judicial Precedent

S.221Rectification of mistakeMiscellaneous application

Appellate Tribunal in its order had observed that "Regional Commissioner of Income Tax had informed assessee that its case had not been selected for audit while case of assessee itself, did not qualify for self assessment because declared tax liability was not higher by 10% as compared to tax assessed for previous year"

Assessee contended that Regional Commissioner of Income Tax had not communicated that case did not qualify for self assessment; and there was no objection regarding the assessee's tax liability being not higher by 10% as compared to tax assessed for previous year while communicating the intention to select the case for audit; and exclusion from Self Assessment Scheme was not timely communicated and the deemed order was already held field after which the order passed under S.62 of the Income Tax Ordinance, 1979 was illegal and void ab initio; and observation of Appellate Tribunal that "exclusion from Self-Assessment Scheme was timely communicated" was erroneous and contrary to facts and documents/papers on record

Validity

Selection of case and non selection of case was on an entirely different premise

Question that case of assessee did not qualify for self assessment because declared tax liability was not higher by 10% was not an issue at the time of selection of case; it was not matter of discrepancies, technical issue and deficiency of documents

Basic gist and fundamental theme of Self-Assessment Scheme was to deposit higher tax by 10% than the last assessed and if it was not deposited then. it was not the case of Self-Assessment Scheme what to talk of picking out the case from Self-Assessment Scheme

Even deletion of sentence "Exclusion from Self-Assessment Scheme was timely communicated" did not change the fate of the case

Admittedly the assessee had not paid higher tax by 10% than the last assessed

From the very inception, it was not the case of `Self-Assessment Scheme'

Miscellaneous application filed by the assessee was dismissed by the Appellate Tribunal.

2011 PTD 748 INLAND REVENUE APPELLATE TRIBUNAL OF PAKISTAN Judicial Precedent

Ss. 221 & 2(38A)Rectification of mistakeMiscellaneous applicationTaxation Officer and Deputy Commissioner of Inland RevenueJurisdiction

Appellate Tribunal had mentioned in its order that Taxation Officer had rightly treated the taxpayer as the industrial undertaking and charged the workers welfare fund

Taxpayer in miscellaneous appellate had contended that notice under S.221 was issued by Deputy Commissioner Inland Revenue, assessment was recorded by Deputy Commissioner Inland Revenue and not by Taxation Officer as concluded by the Appellate Tribunal; that S.2(38A) of the Income Tax Ordinance, 2001 was inserted through Finance (Amendment) Ordinance, 2009 which expired after 4 months, as the same was not approved by the National Assembly; and the order recorded by the Deputy Commissioner Inland Revenue after four months was not legal and was without jurisdiction and that when a statute came to an automatic end by efflux of time, no prosecution for acts done during the continuance of expired statute could commence after the date of its expiry because that would amount to the enforcement of a dead statute

Validity

In concluding paragraph of order of Appellate Tribunal it was mentioned that Taxation Officer issued notice, again Taxation Officer rightly treated the taxpayer as industrial undertaking, charged workers welfare fund while fact of the matter was that notice as well as assessment was made by Deputy Commissioner Inland Revenue whose authority did not find mention in Workers Welfare Ordinance, 1971

Mistake was floating from surface of record

Due to such mistake issue of jurisdiction could not be answered properly

Order was passed without jurisdiction

By amending Income Tax Ordinance, 2001, at the time of inserting S.2(38A) through Finance (Amendment) Ordinance, 2009, Worker Welfare Fund Ordinance, 1971 was also to be amended accordingly; but it was not done

Fate of order of Taxation Officer had changed and levy of worker welfare fund through rectification was held by the Tribunal to be without jurisdiction, null and void.

2010 YLR 1498 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

O. XLI, R.27Miscellaneous application

Failure to decide miscel­laneous application prior to decision of the main case vitiates the judgment in the main case.

2009 PLC(CS) 155 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 8Constitution of Pakistan (1973), Art.199Constitutional petitionAppointment of prosecutorsProcedurePetitioners applied for the posts of prosecutors and all prescribed procedures were followed

After inviting applications through Press, Public Service Commission conducted written test and then conducted interviews of successful candidates, thereafter recommended their names for appointment

Authorities, after following all required procedure, issued offer of appointment to petitioners, who submitted required documents along with acceptance letter within prescribed time but authorities, declined to issue appointment letters

Validity

Authorities after accepting recommendations, could not recall the same and/or scrape recommendation once accepted

High Court directed the authorities to issue posting orders and in case such posting orders were not issued then petitioners would be entitled for payment/salary from such date

Constitutional Petition was allowed in circumstances.