' The department has filed review application in respect of decision, dated 25-2-2003 in which the following recommendations were made:--
(i) The Commissioner amends the assessment exercising powers under section 122 of the Income Tax Ordinance, 2001 so as to "levy the correct amount of tax".
(ii) Enquiries be conducted to determine responsibility for not placing on the file documents such as (a) explanation on 24-9-2002 which admittedly received by the concerned official and passed on to the Record Keeper, and (b) the Inspector's report.
(iii) Appropriate action against the concerned official be taken under disciplinary rules. When conducting the disciplinary action the Inspector Mr. Tahir be specifically asked to explain the reason for his retracting the statement made at the time of hearing of the complainant.
2. It has been submitted that, complainant had filed appeal on 14-9-2002 against the impugned assessm ent which was not disclosed either to the department or to this office during hearing. It is therefore, pleaded that the jurisdiction is barred under subsection (2)(a) of section 9 of the FTO Ordinance. It has further been stated that in the recommendations Mr. Tahir, ITI has been named but in fact he was never posted at the station and the correct name is mentioned in para.5 of the decision as Mr. Saeed Ahmad, ITI. The complaint was received on 30-7-2002. At that time the appeal had not been filed which according to the department was instituted on 14-9-2002.
Therefore, subsection (2)(a) of section 9 of the Ordinance will not apply. So far objection to jurisdiction on the basis of subsection (2)(b) is concerned the same has been considered in Complaint No, 1438 of 2003 and it has been held that considering the object of the legislation where maladministration is established the Federal Tax Ombudsman has jurisdiction to investigate. On this ground also the contention raised by the respondent fails. There is no error apparent on the face of record in this regard.
3. Mr. Zubair Bilal the learned representative for the department has rightly pointed out that the name of Mr. Tahir has wrongly been mentioned which ought to be Mr. Saeed Ahmed who according to him was serving as ITI. This mistake which occurs in para. 6 at page 5 and in para. 8(3) of the recommendation will be corrected and instead of Mr. Tahir the name of Mr. Saeed Ahmad, ITI be substituted.
4. Mr. Zubair Bilal submitted that as the review application had been filed the recommendations were not implemented. It may be clarified that it is a misconception with the department that on filing of review application implementation is automatically stayed. The filing of review application does not operate as stay unless it is specifically D granted by Federal Tax Ombudsman at the request of the department. It is an admitted position that no representation has been filed against the recommendation by the department. Considering the facts and circumstances of the case the time for implementation is extended upto 30 days from receipt of this order by the Revenue Division. Subject to the correction made as stated above the review application is rejected.