CH. ANWAAR-UL-HAQ (JUDICIAL MEMBER).---The titled miscellaneous application has been preferred at the instance of taxpayer seeking recall/rectification of Tribunal's order dated 3-2-2012, contained in I.T.A. No, 1226/LB/2010.
2. As per grounds filed, it is the applicant's contention that the learned Tribunal vide order dated 27-2-2012, has remanded the departmental appeal in the case of the taxpayer to the Taxation Officer for fresh adjudication. It is asserted in the grounds that the taxpayer filed his return of income and subsequent order passed under section 121(1) was rightly cancelled by the first appellate authority after relying upon the decision of Full Bench reported as 2010 PTD (Trib.) 2602. It is further asserted in the ground that while disposing the departmental the Tribunal has ignored its earlier orders cited as 2010 PTD (Trib.) 2602, 2009 PTD (Trib.) 30, I.T.A. No, 697LB/2009 dated 5-5-2010 and M.A. No, 123/LB/2010, whereby it has been held that ex parte order under section 121(1) could only be passed where no return had been filed. In view of the above, it is contended in the grounds that the learned Tribunal while delivering the decision has apparently lost sight of Full Bench decision on the issue and as such as error of law has incurred which can be rectified by resorting to the provisions of section 221 of the Income Tax Ordinance, 2001. On the contrary, the learned DR opposes the application filed by the taxpayer and asserted that no mistake is made by the Tribunal while deciding the appeal of the department which can be rectified at this stage.
4. The issue of best judgment assessment framed under section 121 of the Income Tax Ordinance, 2001, has been examined by the Hon'ble Lahore High Court Lahore in the case reported as 2013 PTD 837 in which it has been held as under:-- "For the above reasons, we are of the view that prior to the amendment brought about in sections 121 and 177(10), through Finance Act, 2010, section 121(1)(d) did not apply to cases where return of total income had been filed and did not envisage a second assessment order."
5. The issue of best judgment assessment framed under section 121 has also been examined by this Tribunal vide order dated 20-8-2013 in I.T.As. Nos, 773-6/IB/2012, whereby, the ratio decidendi of the judgment of the Hon'ble Lahore High Court, Lahore 2013 PTD 837 (H.C.Lah) cited above was followed. Therefore, following the principal of consistency, the present applicant is also deserved the same relief as accorded to other taxpayers. Under the circumstances, I hereby modify the earlier order of this Tribunal dated 27-2-2012 by following the above decisions of Hon'ble High Court and dismiss the department appeal for tax year 2008 and maintain, the order dated 7-6-2010, passed by the learned CIR (A), Zone-II, Lahore.
6. The application is allowed.