These Miscellaneous Applications for Rectification have been filed by the taxpayer against the Tribunal order I.T.As. Nos. 428, 429,430 and 430/IB/2013 dated 28.05.2014 for the tax years 2007, 2008, 2009 and 2010 on the following grounds:--
(1) That the Honourable Appellate Tribunal (ATIR) is misconceived regarding any Business Viz, Jewelery in Pakistan and deposit from said source by the applicant. This has never been declared by the applicant nor detected by both the authorities below; hence the order is liable to be recalled on this score.
(2) That infirmities committed in the order passed by the learned DCIR are not curable, hence remand back of the order ibid is tantamount to provide an opportunity to the revenue to cure it hence not tenable in the eyes of law. Reliance is placed on judgment reported as on (2012 SCMR 1235) 2006 PTD 2654.
(3) That the DCIR issued multiple Years notices under sections 114 and 116 on the same date, on the bases of assumption of jurisdiction and statutory provisions have been ignored in too, it remained unattendant at the end of Tribunal at the time of passing the order hence not tenable in the eyes of law and legally this is not curable fault, the case is liable to be cancelled not remand back case.
(4) That the ex-parte order in the absence of ignorance of section 218 which is again not curable, where basic order is without lawful authority then the resultant superstructure is bound to fall on the ground automatically, this fault is not curable in the eyes of law. Reliance is on (PLD 1958 SC 104)
(5) That no agent under section 172 of the ordinance has been appointed hence the whole proceedings are illegal and void ab initio. Reliance is placed on judgment reported as 2007 PTD (Trib.) 1740.
(6) That this mistake at the end of learned Division Bench of ATIR at the time of passing the order is against the settled principle of consistency, on the same issues learned Judicial Member of this bench in another case accepted the version of the Appellant on the same grounds (2007 PTD (Trib.) 1740) hence this mistake is liable to be rectifiable. .(7) That the learned DCIR passed ex parte ,order without getting the statutory notices served on the applicant as per section 218 of the Income Tax Ordinance herein after short Ordinance hence not curable in the eyes of law.
(8) That order has been passed in terms of section 122-C of the ordinance for the tax years (2007-2008-2009-2010) when it was not born on the statute. Reliance is placed on judgment reported as (2014 PTD 1484 (H. c)).
(9) That infirmities committed in the order passed by the learned DCIR are not cure able, hence not tenable in the eyes of law. Reliance is placed on judgment reported as on [1993 SCMR 11341] [1996 SCMR 230] 2006 PTD 2654.
(10) That the judgment of the learned Appellate Tribunal Inland Revenue dated 28.05.2014 is neither countenanced with section 24-A of the General Clauses Act.
(11) That it is the duty of the Tribunal to decide controversy between the parties after application of mind as envisaged by Articles 4 and 5(2) of the constitution and section 24-A of the General Clauses Act, 1897 and decide the Controversy with reasons and in accordance with law.
(12) That without considering the fact the judgment of this Tribunal cited as 2007 PTD (Trib.)
1740.
(13) That during the proceedings the Honourable Division Bench passed remarks that Revenue has no case but the order seems to be per incuriam hence not tenable.
(14) That during the hearing of the appeal 28.05.2014, the AR submitted written argument along with relevant judgment's of the higher courts but these arguments judgment 's were sight out from the learned Bench at the time of passing the order.
2. Fact of the case leading to this Tribunal's Order No. ITAs Nos. 428, 429, 430,431/IB/2013 for the Tax years, 2007, 2008, 2009 and 2010 dated 28.05.2014 have been threshed out therein. The tax payer has, however, come up for rectification of this Tribunal's Order dated 28.05.2014 praying for rectification of mistakes apparent from this order and floating on the surface of the record. In support of his prayer, he has produced a number of decisions given by this Tribunal and the superior Courts including decision by this Tribunal bearing ITAs Nos. 1870/LB to 1879/LB of 2006 decided on 8th February, 2007 and reported as 2007 PTD (Trib.) 1740 and 2013 PTD (Trib.) 2174, wherein the learned Tribunal recalled its original order accepting the tax payers prayer regarding non-service of the statutory notices on him.
3. Both parties in this case have been heard. The learned AR pleaded his case for rectification on the strength of the arguments as mentioned in the preceding Para, and the grounds of Appeal mentioned on page 1 and Page 2 of this order. These grounds of miscellaneous application for rectification of mistake apparent from record have been perused in the light of the original order bearing I.T.As. Nos. 428, 429, 430, 431/IB/2013 dated 28.05.2014 passed by this Tribunal.
4. The learned AR had argued that in this case statutory notices were issued by the assessing Officer without any jurisdiction. He had pointed out that multiple notices under sections 114 and 116 had been issued by the taxation officer on 02-07-2011 on which date, jurisdiction of the case had not been assigned to the officer. This important point went unnoticed by this bench while passing the original order, though the AR had pointed out the same but escaped the attention of the bench.
Moreover, it was also pointed out the tax payer is non-resident. The revenue had neither appointed any agent under section 172 of the Income Tax Ordinance, 2001 nor any service of notice was made on the tax payer or his agent. The learned CIR (A) also mentioned these things in his order but he also failed to fully appreciate the fact of issuance of notices without jurisdiction and non service of statutory notices on the taxpayer by annulment of the order. Issuance of Notices without jurisdiction and non service of statutory notices on the tax payer makes the whole proceedings as illegal and ab initio void.
5. After going through these facts of the case we are fully convinced to recall the original order bearing I.T.As. Nos. 428, 429, 430, 431/IB/2013 dated 28.05.2014 for the tax year, 2007, 2008, 2009, and 2010. Accordingly the order made by both the taxation officer and the CIR(A) are hereby cancelled.
6. The miscellaneous application succeeds in the manner as indicated above.