' MUNSIF KHAN MINHAS (JUDICIAL MEMBER).---This miscellaneous application has been filed by the assessee-applicant for rectification of an order passed by the Appellate Tribunal Inland Revenue in Income Tax Appeal No,760/IB/2010, dated 9-8-2010 pertaining to tax year 2009 on the following points:--
(i) That the taxpayer is an individual who derives income from distribution of goods of Messrs Colgate Palmolive Limited, Karachi.
(ii) That return of income for tax year 2009 was filed under section 114 and the assessment stands finalized under section 120(1)(b) of the Income Tax Ordinance; 2001.
(iii) That later on the assessm ent was rectified under section 221 of the Income Tax Ordinance by levying worker welfare fund amounting to Rs,41,040., The assessment was challenged in appeal before the CIR(A) Islamabad who upheld the order of the Assessing Officer.
(iv) That feeling aggrieved 2nd appeal was filed which was rejected by the ITAT vide above referred order.
(v) That the ITAT mentioned in the concluding para of its order dated 9-8-2010 that the Taxation Officer has rightly treated the taxpayer as the Industrial undertaking and charged the WWF at the prescribed rate. It was further mentioned that Taxation Officer has issued notice under section 221 of the Income Tax Ordinance.
(vi) That facts of the case are that notice under section 221 was issued by D.C. Inland Revenue.
Likewise, the assessm ent order was recorded by D.C. Inland Revenue and not by Taxation Officer as concluded by ITAT. The Taxation Officer does not include D.C. Inland Revenue.
(vii) That the above mistake is apparent from the order which needs rectification. In addition, jurisdiction of D.C. Inland Revenue was contested vide ground No, IV but it was not considered at all.
Jurisdiction can be raised at any stage, having legal substance.
(viii)That the grounds Nos.1, 2, 3 and 5 were not considered.
2. The rectification merits acceptance due to fact that in concluding paragraph of order dated 9- 8-2010 in Tax Appeal No, 76 Bench it is mentioned that Taxation officer issued notice, again Taxation officer rightly treated the taxpayer as industrial undertaking, charged WWF while fact of the matter is that notice as well as assessment was made by DCIR whose authority does not find mention in WWF Ordinance 1971. Mistake is floating from surface of record; perhaps due to this mistake issue of jurisdiction could not be answered properly.
3. Through Finance (Amendment) Ordinance, 2009 section 2(65) was omitted. Resultantly, Taxation officer did not include authority of DCIR. Hence officer, issuing notice and subsequently passing order, was without any jurisdiction. Order is void ab initio being without jurisdiction.
4. Issue of appointment under statute subsequently amended/ repealed, at first came Allahabad High Court. View held was that a person appointed a Public Analyst under the UP Pure Food Act, 1950, which was subsequently repealed by section 25 of the Prevention of Food Adulteration Act, 1950, must be deemed a Public Analyst for the purposes of the latter Act. But this decision was later held erroneous by a full Bench of the same High Court which held that the repeal of the UP. Pure Food Act, 1950, had the necessary consequence of terminating the appointments of Public Analyst made under that Act and therefore a person appointed a Public Analyst under the UP Pure Food Act cannot be deemed a Public Analyst under the Prevention of Food Adulteration Act.
5. Another argument of learned AR is that section 2(38A) was inserted vide above referred Ordinance which expired after 4 months, as the same was not approved by the national assembly.
Thus the order recorded by the DCIR after four months is legally without jurisdiction. When a statute comes to an automatic end by efflux of time, no prosecution for acts done during the continuance of expired Act can be commenced after the date of its expiry because that would amount to the enforcement of a dead Act.
6. In this scenario I have been left with no other option except to hold the order dated 9-10-2010 have been passed without jurisdiction. It is shocking to note that by the amending Income Tax Ordinance, 2001, at the time of 'inserting section 2(38A) through Finance Amendment Ordinance, 2009, Worker Welfare Fund Ordinance, 1971 was also to be amended accordingly. But it was not done so. As per contention of learned DR, still the department has got time to revisit the file after the amendment of WWF Ordinance, 1971. The nut shell of the above discussion is that fate of order dated 9-10-2010 has changed and levy of WWF through rectification is held to be without jurisdiction, null and void. The assessee appeal stands accepted in the above terms.