JUDGMENT KH. FAROOR SAEED, J. - The instant petition has been filed impugning the order of the Assistant Commissioner of Income Tax, Taxation Officer, Unit-04, Audit Division-ll, Regional Tax Office, Lahore.
2. The reason for challenging the order is that in the earlier round of litigation, the matter is still pending before the High Court wherein a reference application has been filed against the order of the Income Tax Appellate Tribunal, in compliance to the notice issued for re^ assessment after remand the present petitioner informed vide this reply dated 14.6.2008 that the case is pending for final adjudication before the Honourable High Court. Further on the mandate of the judgment reported as "Muhammad Hayatullah Cheema v. Sardar Ali Raza Masood Qazilbash" (2002 PTD 1195), wherein it has held by the Lahore High Court that where the matter is pending at the higher forum, the lower forum does not have jurisdiction to make re- the income Tax Ordinance, 1979 for setting aside an order could not be applied-Where, while mentioning the term "appeal" words filed under S. 136, Income Tax.Ordinance^ 1979 having also been mentioned, one should'not have an>J| doubt in his mind that it was either 'appeal' or 'reference' j filed under S. 136 which provided an exception for ignoring the limitation provided under S. 66(1 )(c) of the Income Tax Ordinance (XXXI of 1979)-Principles--The. Legislature has not amended the law advisedly. The provisions of Section 136 were earlier amended in 1997 when the "Reference" under the sub-section was converted into "Appeal". The corresponding additions were made in connecting sections including 66(1 )(c) of the Ordinance-Later when the r legislature in its wisdom again converted the, appeal under Section 136 to 'Reference' through Finance Ordinance/ 2000, corresponding word in other sections with special reference to Section 66(1 )(c) was not amended. This omission has created anomaly. The intention of the law, however, is very clear.
There is no appeal provided under Section 136 w.e.f. 2000 and the same has been replaced b\ 'Reference'-Redundancy or superfluity cannot be attributed ,to the legislature. No word in law in inserted without purpose lt is only an ignorance on the part of the people who hurriedly pushed amendments in law for short term purposes / without realization, the long term effects. When, there is no 'appeal' provided under Section 136 keeping the word 'Appeal' in Section 66(1 )(c) is. Nothing beyond negligence on the part of the draftsman and it cannot be understood to be the intention of the legislature. When in 1997, the said section had provided an appeal against the order of Income Tax Appellate Tribunal, the words 'Appeal filed' were added in the corresponding S. 66(1), as a result of which the limitation provided for re-assessment of a remand order became inapplicable. The same should have been replaced by the words "Reference filed" after the amendment in'' Section 136 by providing reference to High Court as against the appeal to High Court. Therefore, omission of the Draftsman is to be ignored in the presence of the facts- judgment reported in 1998 PTD 1379, two different interpretations were being made by different income Tax Authorities on Section 80B of the Ordinance. |P 10. Ln our view, "mistake apparent from the record" would not cover a "mistake" committed at time when the law was not clear. If two interpretations of law were possible when the original assessm ent order was made and the Assessing Officer adopted one of those" interpretations, it cannot be said that the mistakes is apparent from the record.
11. In view of what has been said above, we are of the considered view that the Assessing Officer could not have Invoked Section 156(2) of the Income Tax Ordinance, ' 1979,' therefore, we answer questions Nos. 1 and 2 in v positive and question No. 3 in negative.