' Through these two cross-Appeals the impugned order of the learned CIT(A) dated 12-7-2010 for the (Tax Year 2006) has been objected by both the parties. The Taxpayer has objected the impugned order on the following grounds:-- "(3) That the learned Commissioner Inland Revenue (Appeals-III) has legally erred in remanding back the case to the Assessing Officer for re-adjudication as the powers of setting aside remand of the case has been omitted from section 129 of the Income Tax Ordinance. 2001 vide Finance Act, 2005.
(4) That the learned Commissioner Inland Revenue (Appeals-III) has erred in remanding, the case to the Assessing Officer while accepting the legal and factual grounds of the appellant."
' While the Department has assailed the impugned order on the following grounds; -- "(2) That the Learned C.I.R (Appeal-III) was not justified in agreeing in principle with the contention of the taxpayer. When the Taxation Officer had rightly assessed the difference between retail price and hire purchase price under the head "income for other services'".
(3) That the learned CIR (Appeals-III) was not justified in directing to allow the deduction of bad debts amounting to Rs,4,818,138, whereas the power of setting aside has been omitted through Finance Act, 2005."
2. We have heard the learned representatives from both the sides and have also perused the impugned order of the learned CIT(A) and the order passed by the Taxation Officer under section 122(5A) of the Ordinance the documents and the case-laws placed before this Bench by the learned counsel for the Taxpayer and the other relevant record of the case. The learned D.R. Has contended that the Taxation Officer has rightly assessed the difference between retail price and hire purchase price under the head income from other services and there was no justification for directing to allow the deduction of had debts. On the other hand the learned counsel representing the Taxpayer has contended that there was no justification for invoking the jurisdiction under section 122(5A). She has contended that the Taxation Officer without any justification has treated the finance income on hire purchase as income from other sources. She has contended that the income declared from business activity of the appellant-company can no way be treated as finance income on hire purchase as income from other sources. She has contended that the brought forward business losses against finance income have not been adjusted by the Taxation Officer treating the same as separate block of income. She is of the view that the case-law quoted by the Taxation Officer to be made basis for the amendment is totally irrelevant in the appellant case. Both the learned D.R. As well as the learned counsel representing the Taxpayer are opposing the setting aside remanding back of the order passed by the Taxation Officer under section 122(5A) by the learned Commissioner (A) on the grounds that under section 129 of the Income Tax Ordinance, 2001 the remanding back of the case to the assessing authority for re-adjudication has been withdrawn by the legislature and now the first appellate authority i,e, learned CIR(A) has no jurisdiction in remanding back the cases to the assessing authority. In this regard the learned representative of the Taxpayer has contended that in this case the learned CIR(A) remanded back the case in spite of facts that he has accepted the legal and factual issues raised by the Taxpayer.
3. We have considered the arguments advanced from both the sides and have also perused the relevant record of the ease. The learned counsel representing the Taxpayer has placed before this bench the order passed by the Taxation Officer for the previous as well as subsequent year of assessm ent i,e, 2007 and contended that the appellant is maintaining the accounts in the similar fashion as were in the previous as well as in the subsequent years. She has contended that while finalizing assessm ent for the Tax Years 1999-2000 as well as for Tax Year 2007 the department has accepted mark-up and (Finance Income) on installment sale as part of the business income. In this regard the decision of the honourable Karachi High Court reported as 2004 PTD 3020 (Karachi High Court] and the decision of this Tribunal reported as 2006 PTD (Trib.) 356 have also been referred. The honourable High Court in the above referred decision has held that the issues once settled and accepted by the Department shall not be allowed to be deviated from because it will create uncertainty which has always been deprecated and disapproved by the superior Courts legislature as well as the F.B.R. Itself. We are of the view that in this case once the similar issue has been adjudicated in the previous as well as in the subsequent years and the Department has not agitated the issues in appeal therefore for this particular years deviating from the settled issues cannot be approved. Likewise in the above referred decision of this Tribunal which is however, regarding the repealed Ordinance, 1979 when the learned CIT(A) under the law was allowed to set aside the matter to the assessing authority it has been held that power of remand is discretionary in nature and such discretion is to be exercised reasonably and fairly indicating reasons for remand as the remand order would have meant that assessee would have been subjected to another round of cumbersome proceedings which is deprecated in law and such order should not be passed in routine manner to allow party to improve his case or to fill in lacuna. The learned counsel representing the Taxpayer as also referred in another decision of this Tribunal reported as (2010) 102 Tax 554 (Trib.), but we are of the view that this case is not relevant in the matter due to the above referred decision. In view of the above referred facts and the legal position, we are of the view that there was no justification for remand in back the matter as the learned CIT(A) under the law has no authority to remand back the matter. Even otherwise we have found that the learned CIR(A) has given categorical observation that the "reliance made by the learned Additional Commissioner in support of his contention does not seem relevant to the issue of treating the finance income as markup/interest income and not applies to the appellant case. Whereas contention of the A.R. Of the appellant that the treatment to these receipts as mark-up is applicable in particular business like banking has weight and based on facts of the case. The case-law referred by the A.R. Is more relevant to his contention. Moreover in previous' years department has accepted these receipts of the appellant on account of mark up on amount of installments as business income and the same has been added to the business income of the taxpayer". We are of the view that after above said observation that there was no justification for directing to reconsider the issue by the Taxation Officer. In view of E these facts and circumstances of the case the impugned order of the learned CIT(A) to the extent of the remanding back of the matter is vacated and the order passed by the Taxation Officer under section 122(5A) being against the previous as well as subsequent Tax Years is cancelled. The appeal filed by the Taxpayer is allowed while the cross appeal filed by the department is dismissed. Both the appeals are decided in the manner referred above.