1. ORDER JAWAID MASOOD TAHIR BHATTI, JUDICIAL MEMBER. - Through these two appeals,, appellant/department has objected to the consolidated impugned order of the learned CIT(A), dated 1.12.2007 for the assessment years 2000-01 and 2001-02 on the following common grounds:-- "(1) That the decision of the CIT(A) is contradictory itself as at one place the CIT(A) held that assessm ent was framed u/S. 59A whereas on the other holds that no assessment was available.
(2) That the CIT(A) erred to ignore the decision of apex Court of Pakistan in C.P. No. 702-L/2003 wherein it has been held that even non- mentioned of sub-clause shall not vitiate the whole assessm ent proceedings.
(3) That the CIT(A) was not justified to ignore the fact that more than one factors may be available a taxpayer's case.
(4) That the CIT(A) erred to ignore the omission of sub-section (4) of Section 59 of the Income Tax Ordinance, 1979 through Finance Act, 2000.
(5) That the appellant craves permission to add, alter, modify or withdraw any or all grounds of appeal before or at the time of hearing of appeal."
2. I have heard the learned representatives from both the sides and have also perused the impugned order of the learned CIT(A) and the assessment order.
3. I have4 found that the learned CIT(A) has cancelled the assessment order passed under Section 62/65 for the following four reasons:-- "(1) That the assessm ents framed under the repealed Income Tax Ordinance, 1979 after enforcement of Income Tax Ordinance, 2001 are to be opened/rectified/modified under the provisions of Income Tax Ordinance, 2001 and not under the provisions of repealed Income Tax Ordinance, 1979.
(2) That there are four clauses of Section 65 of the repealed Income Tax Ordinance, 1979 as under:- -
(a) escaped assessm ent,
(b) been under-assessed,
(c) been assessed at too low a rate,
(d) been the subject of excessive relief.
4. I have seen office copies of the prescribed notices which clearly show that the Taxation Officer ticked two different clauses which means that the Assessing Officer was not sure with regard to the fact that it was a case of under assessment or escaped assessment.
(3) That there is no assessm ent order in writing which may be rectified as assessments were completed u/S. 59A by writing DCR No.
(4) . That in this case no order was passed before 30.6.2001 and 30.6.2002 as provided under sub- section (4) of Section 59. The order was, if any, passed on 31.1.2003 is nullity in law and superstructure built fall down for want of jurisdiction."
5. The learned counsel representing the assessee supporting the impugned order of the learned CIT(A) has submitted that the case referred in the grounds of appeal by the appellant/department is distinguishable from the present case and facts of that case are totally different. The learned counsel placing reliance on the decision of the Hon'ble High Court reported as (1996) 74-Tax-229 (H.C., Lhr.) has contended that the Hon'ble Lahore High Court has not approved the order passed by the Assessing Officer where before making the order the specific notice under Section 65 has not been issued properly. He has in this respect also referred the decision of this Tribunal reported as 2006 PTD 66 (Trib.).
6. After considering all the fads of the case I am of the view that the case referred in the grounds of appeals has not been placed before this Bench by the department nor the details of that case have been mentioned, therefore, I am. Unable to consider that case in the present situation. I am of the view that the reasons given by the learned CIT(A) keeping in view the facts and circumstances of the case are in accordance with law and placing reliance on the decisions of this Tribunal as well as the superior Courts of Pakistan. I, therefore, find no warrant for interference in the impugned order of the learned CIT(A) which is upheld and both the appeals filed by the department are dismissed.