The Department through this appeal has objected against the impugned order of learned CIR(A) dated 23-6-2011 on the following grounds:-- "(2) That keeping in view the facts and circumstances of the case, the learned CIR(Appeal) was not justified to deem the selection of case for audit by the Commissioner wrong as the Commissioner Inland Revenue has statutory power to conduct audit of taxpayer.
(3) That keeping in view the facts and circumstances of the case, the learned CIT(A) has not considered the folloWing facts:--
(i) The tax has been deducted by the withholding authority "10% under section 233 of the Income Tax Ordinance, 2001 being full and final discharge of tax liability.
(ii) In subsequent tax year the receipts have been offer to tax under Presumptive and no bifurcation with reference to "Discount" and "Commission" has been shown, whereas no change has occurred in the other conditions.
(i.e) The Franchise Agent also shows that all the payments made by prescribed person are of "Commission" in nature as very clearly provided in para No.10 of the Agreement and details of commission are further mentioned in schedule-4 to the said agreement."
2. We have heard the learned representatives from both the sides and have also perused the impugned order of the learned CIR(A) and order passed, by the Taxation Officer under section 122(4) of the Ordinance. We have found that the Taxpayer in this case is an individual engaged in the business of Commission/discount on sale of various products of Pakistan Mobile Communication, Ltd. For the year under review the income has been declared from sale of scratch cards, SIMs etc. Of Messrs Pakistan Mobile Communications Limited i.e. Mobilink. The returns were filed on 30-9-2005 under section 113A of the Income Tax Ordinance, 2001 but it was pointed,, out by the department to the Taxpayer that he did not qualify to avail the benefit of the section 113A and therefore, file a statement under section 115(4) of the Income Tax Ordinance, 2001 as his income was in the nature of commission on which tax deduction under section 233 of the Income Tax Ordinance, 2001 was covered under PTR. The Taxpayer filed a 'statement claiming the total refund of Rs.784,385 reducing the refund claim by an amount of Rs.298,741 from an amount of Rs.1,083,126 claimed in the return filed on the basis of section 113A of the Income Tax Ordinance, 2001. In the process to secure refund the taxpayer also knocked the door of.Federal Tax Ombudsman, who while disposing of the complaint on 17-10-2006 filed by the Tax payer bearing No.0 884-K/2006 found no maladministration on the part of the department as no return of income was filed to enable the Taxation Officer to decide whether any-refund was due or not. The Taxpayer filed the return under normal law in addition to the statement under section 115(4) of the Income Tax Ordinance, 2001 declared income from business at Rs.156,058 and claiming tax refund at Rs.779,878. The Taxpayer also filed application under section 170 of the Income Tax Ordinance, 2001 to get the amount as refundable to be refunded. The Taxation Officer rectified the deemed order under section 120 of the Income Ordinance, 2001 treating all the receipts covered under PTR. Under section 221 of the Income Tax Ordinance, 2001. Against which the first appeal was filed before the learned CIR(A) who has vide his order dated 6-2-2007 declared the order under section 221 passed by the Taxation Officer to be illegal, null and void and ab-initio and therefore has annulled, and directed to restore the assessm ent order under section 120 of the Income Tax. Ordinance, 2001 and to issue the refund after examining the evidences of the tax withheld. Accordingly, the Taxpayer was issued a refund of Rs.779,878 vide order dated 22-3-2607. The appeal was filed by the department against the above referred order of the learned CIR(A) dated 6-2-2007 which was dismissed vide order A dated 26-6-2009 in I.T.A. No.441/KB/2007 (Tax Year 2005). The Taxation Officer then selected the, case, of the present Taxpayer for audit under section 177(4) of the Ordinance, 2001 and as finally amended order under section 122(4) of the Ordinance, 2001 calculating the balance tax payable at Rs.775,783. Against the above treatment meted out by the Taxation Officer the Taxpayer filed the appeal before the Learned CIR(A) who has in the second round also annulled the order placing reliance on the decisions of the honourable Supreme Court of Pakistan reported as 1992 PTD 566 (S.C. Pak), 1992 PTD 932 (S.C. Pak) the decisions of the honourable'High Court reported as 2010 PTD 1506 (High Court, ISB), 2002 PTD 212, and the decisions of the Tribunal reported as 2008 PTD 216 (Trib.) and 2009 PTD 1536 (Trib.) and has held that in view of the above decisions the Doctrine of merger would be applicable in the instant case as the case of the Taxpayer has been selected for audit under section 177(4) of the Income Tax Ordinance, 2001 vide Letter No.2098 dated 26-6-2008 on the basis of definite information but no definite information as such has been mentioned in the order passed by the Taxation Officer. The learned CIR(A) has observed that on the similar facts which have already been discussed in the first round of litigation before the learned CIR(A) and this Tribunal the Taxation Officer was not justified to amend the order. We are of the view that the learned CIR(A) has rightly annulled the order passed by the Taxation Officer. No interference is required in the impugned order which is therefore, upheld and the appeal filed by the department is dismissed. . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.