' These four miscellaneous applications under section 221 of Income Tax Ordinance, 20Q1 are filed for rectification of order dated 22-3-2011 in I.T.As. Nos. 1007 and 1008/LB of 2010..
' Miscellaneous Application No,569/LB of 2011 relating to tax year 2005 and Application No,09/LB of 2012 relating to tax year 2006 are filed with the signature of Commissioner Inland Revenue (Mr. Shafqat Mahmood), RTO, Faisalabad, whereas remaining two applications i,e, Nos.10 and 11/LB of 2012 are filed by the then Assessing Officer in personal capacity. Perusal of these applications shows that there is no Application for rectification available in the file, which means that these are wrongly entertained by the office. The numbers of later two applications are ordered to be deleted from the list, as the same were not applications in stricto senso.
2. While arguing on Applications Nos.569/LB of 2011 and 09/LB of 2012 Mr. Asif Hashmi, Legal Advisor for department submits that for the reasons mentioned in the applications, department is requesting for expunction of paragraphs Nos.7, 8 and 9 of order dated 22-3-2011. On court's query he submits that career of the then DR and Assessing Officer is in danger as they were called by FTO in contempt. He was also asked whether the recommendations of FTO were challenged before IA President, the answer was in negative.
' Mr. Muhammad Imran Rashid, Advocate High Court was called in person for assistance of the court as he represented the appellant and was present throughout the proceedings. Mr. Imran Rashid in his personal capacity agreed to assist court and submits that the objections about FTO's jurisdiction were endorsed by the then DR and Assessing Officer. However, assisting fairly, he submits that merits of main appeal shall not be prejudiced if these paragraphs are expunged at the request of department. On court's question he stated that after getting relief in first two appeals, latter appeals were not pressed by him.
3. Heard learned counsel and record perused.
' Perusal of the order dated 22-3-2001, in I.T.As. Nos.75 and 76/LB of 2010 and 1007 and 1008/LB of 2010, shows that first set of tax payer's appeals were accepted on legal ground that returns revised before substitution of subsection (6) of section 114 of Income Tax Ordinance. 2001 had attained the status of amended assessm ent order. The Show Cause Notices, therefore, were held against the law. We agree with the submissions by Mr. Muhammad Imran Rashid, Advocate High Court, that the application by department, if allowed shall not affect the main decision on merits.
4. Examination of orders contained in Paragraphs Nos. 7, 8, 9 reveals that it has no direct bearing on merits if the case, therefore, these remarks at the most could be taken as "obiter dicta" in the judgment. Particularly in presence of Mr. Imran Rashid's statement that later set of appeals were not pressed by him, after getting relief in first set of appeals.
' Because, second set of appeal was not withdrawn by the appellant taxpayer, therefore, legal position of Commissioner's (Appeals) orders, under these appeals, were discussed in these Paragraphs.
5. Be that at it may, without going into the controversy that department have argued on FTO's jurisdiction or not? We treat the statement of Mr. Imran Rashid, Advocate High Court, that second set of appeals were not pressed, as mistake and are inclined to rectify the same under section 211 of the Income Tax Ordinance, 2001, through this order.
6. Since department, is requesting for expunctions of remarks in paragraphs Nos.7, 8, 9 and it had not challenged the recommendations of FTO before President, therefore, paragraphs Nos. 7, 8 and 9 are expunged from order dated 22-3-2011. This paragraph shall be replaced by following Paragraph:-- "7. Second set of appeals are dismissed being not pressed by learned counsel for appellant taxpayer."
' Applications are allowed.