' Through these three appeals the appellant department has objected to the consolidated impugned order of the learned CIT(A), dated 12-4-20Q7 for the tax years 2003, 2004 and 2005 on the following common grounds for all the three years under review:-- "(1) That the direction of learned CIT(A), Hyderabad to issue refund for the tax year 2003 is illegal as there is no provision in the Income Tax Ordinance, 2001 to file the return of total income for the same source of income in respect of which statement under section 115(4) has already been filed and as such had attained finality."
(2) That there is no provision of law to revise the statement under section 115(4) of the Income Tax Ordinance, 2001, through filing of return in the same tax year.
2. The instant appeals were decided by this Tribunal, vide order dated 29-8-2008, however the above referred order of this Tribunal dated 29-8-2008 was rectified vide order dated 9-9-2009 in M.A. (Rect.) Nos.187 to 189/KB/2009, recalling the above referred order dated 29-8-2008. Now the matter has again been fixed for hearing before this bench.
3. We have heard the learned representatives of both the sides and have perused the consolidated impugned order of learned CIT(A), the orders passed by the Taxation Officer under section 170(4) of the Income Tax Ordinance, 2001 for all the three years under review and the case-laws referred from both the sides.
4. The learned DR representing the appellant department contended that there are many judgments in the field regarding the issue which is the subject-matter of these appeals. He submitted that the taxpayer/ respondent in this case has filed statement under section 115(4) subsequently has revised return under section 114(6) of the Ordinance for the same source of income which is not permissible in law and the Taxation Officer has rightly rejected the claim of the refund as applied by the taxpayer. According to learned D.R., the learned CIT(A) has vacated the order passed by the Taxation Officer without any justification.
5. On the other hand learned counsel representing the Tax Payer is supporting the impugned order of the learned CIT(A). He has contended that the learned CIT(A) has not accepted the treatment meted out by the Taxation Officer on the basis of the decisions of the superior courts on the subject. He has in this respect placed reliance on the decision of this Tribunal dated 1-4-2009 in I.T.As. Nos.181 and 182/KB/2007 (Tax Years 2004 and 2005), order of this Tribunal dated 6-4-2009 in I.T.As. Nos.1285 and 1286/KB/2006, the decision of this Tribunal reported as (2009) PTD (Trib.) 173, wherein it has been held that there is no bar to file return after filing statement under section 143-B and that even if the assessee was not obliged to file statement under section 143-B of the repealed Income Tax Ordinance, 1979 and even if he files the same wrongly he could furnish the return as there is no bar to file return even if statement was filed earlier. In another case decided by the Hon'ble Lahore High Court reported as 2008 PTD (Trib.) 1897 wherein in the case of the assessee deriving income as carriage contractor, who filed statement under section 115(4) for tax year 2003 by declaring receipts and deduction of tax as final discharge of tax liability and later on filed return of income and claimed refund it was held that the tax deducted was adjustable. It has been held by the Hon'ble High Court in this case that the Circular No,11 is neither relevant nor applicable in respect of matters falling under Income Tax Ordinance, 2001 as the same explains relevant law under repealed Income Tax Ordinance, 1979. It has further been clarified by the Hon'ble High Court in this judgment that the taxpayer/carriage contractors are providing services for it principal companies, therefore, their returns are to be adjusted from this angle only, as the carriage contractors falls within the purview of "services' as envisaged in section 153(1)(b). In another decision placed before this Bench by the learned counsel for the taxpayer dated 25-11-2009 in I.T.As. Nos.134 to 136/IP/2009 (Tax Years 2003 to 2005) placing reliance on the decision reported as 2009 PTD (Trib.) 173, it has been held that there is no bar to file return after filing statement under P.T.R., and even if the taxpayer had filed statement wrongly, he could furnish a return in lieu thereof as the law gave unfettered right to the taxpayer to opt in or out of P.T.R. And that unless such an option was exercised by the taxpayer in writing he would continue to be taxed under normal law. In such circumstances mere filing of statement under P.T.R. Cannot be taken as an option for taxation under the same scheme. If the taxpayer was not obliged to file statement under P.T.R. And even if he had filed the same wrongly he can furnish the return. Learned counsel in support of his contention has also referred the latest decision of this Tribunal reported as 2010 PTD (Trib.) 927, the decision of this Tribunal reported as 2008 PTD (Trib.) 332 and 2006 PTD (Trib.) 1936.
6. After considering all these case-law referred and the facts of this case, we are of the view that the learned CIT(A) has rightly held that the order of the Taxation Officer rejecting the refund application cannot be sustainable in the eyes of law as nature of services was established and the tax deducted under section 153(1)(b) and (c) also declared adjustable by the legislature of statute w,e,f, 1-7-2002 and the case-law cited by the taxpayer are fully applicable in the instant case. We also find no exception in the observations of the learned CIT(A) that the Taxation officer has failed to serve the order within time and without allowing opportunity of being heard to the taxpayer therefore, in such circumstances, the return filed by taxpayer are an assessment in terms of section 120 of the Income Tax Ordinance, 2001 and exceeds deduction, if any shall be liable to be refunded to the taxpayer.
7. All the three appeals filed by the department in view of these facts and circumstances and the legal position are dismissed.