' YAHYA AFRIDI, J.---Commissioner of Inland Revenue Zone-II, Regional Tax Office, Peshawar, petitioner, has made this Reference to answer the following questions of law:- `I) Whether the learned ATIR was justified to reverse its earlier judgment in I.T.A. No,68(PB) of 2013 dated 10.07.2013 on the Misc. Application filed by the Taxpayer?
II) Whether tee learned ATIR has not erred in law by following the judgment of Lahore High Court reported as 2012 PTD 1815 in the case of Messrs Chenone Stare Limited which has been observed to be nullity by the Honourable Supreme Court vide judgment dated 03.01.2013 in C.P. No,1032 etc. For non-compliance of requirements of Order XXVII-A, Rule 1, C. P. C. ?
III) Whether the learned ATIR has not erred in law by incorrectly interpreting the concept of audit emobodied in sections 177(1) and 214C of the Income Tax Ordinance, ignoring the explicit intent of legislature and against the spirit of constitution as well as pronouncements of the superior Courts on this issue?
IV) Whether the ATIR erred in not considering that the Commissioner Inland Revenue is empowered to conduct audit of tax affairs of a taxpayer under Section 177(1) of the Income Tax Ordinance, 2001 without prior selection by the Federal Board of Revenue when the Legislature by consciously inserting another proviso before the existing proviso in subsection (1) of Section 177 and creating an exception in subsection (2) of Section 214C has kept the original power of the Commissioner to call for record of a taxpayer for audit distinct and separate from the powers of the Board under section 214C ibid?
V) Whether the first proviso of Section 177 is subservient to Section 214C of the Income Tax Ordinance, 2001 when Legislature through subsection (2) of Section 214C has specifically created an exception by excluding the proviso of Section 177 of the Ordinance from the purview of Section 214C with clear intention to keep the inherent powers of the Commissioner to call for record for audit after recording reasons thereof under Section 177(1) separate from the selection of cases by the Board under section 214C?
VI) Whether the ATIR has erred in not considering that section 214C of the Income Tax Ordinance, 2001 does not takes away the independent and inherent powers of the Commissioner to call for record and conduct audit of the taxpayers even after fulfilling the conditions specified in the first proviso to subsection (1) of Section 177?
VII) Whether the ATIR erred in holding that powers of Commissioner to call for record of a taxpayer for audit can be termed as unbridled and discriminatory when specifically it is subject to two fold check i.e, the legislative check of recording reasons in writing and communicating the same to the taxpayers and judicial check in the form of hierarchy of appellate fora upto the level of Supreme Court of Pakistan?
2. Brief and essential facts leading to the present Reference are that the respondent/taxpayer is an individual, deriving income from running of tyres business on whole sale as well as retail basis; that the taxpayer filed return of total income declaring net income at Rs,85,055/-; that the case was selected for audit under section 177 of the Income Tax Ordinance, 2001 ("Ordinance"), and after completion of the formalities of law, the assessment was amended under section 122(1) read with subsection (5) of the Ordinance at net income of Rs,3,230,000/-; that the order was annulled by the learned CIR (Appeals) and on second appeal by the Revenue, the learned Appellate Tribunal Inland Revenue (ATIR), Peshawar Bench, vide I.T.A. No,68 (PB) of 2013 dated 10.07.2013, remanded the case to the CIR (Appeals) with the directions to strictly confine its order to the grounds of appeals agitated in the Memo of Appeal and not to other issues which had not been agitated by the taxpayer; that on the Misc: Application filed by the taxpayer on 20.12.2013., the learned ATIR vide the impugned judgment maintained its order of remand of the case to CIR (Appeals), however, amended its earlier decision with respect to the scope of consideration by CIR. Hence, the instant Tax Reference.
3. Valuable arguments of the learned counsel for the parties were heard and perused the available record with their able assistance.
4. At the very outset, the worthy counsel for the Revenue was confronted to point out any legal issue decided by the worthy Tribunal in its impugned decision dated 10.7.2013 warranting correction by this Court. The worthy counsel was unable to satisfy us regarding the said crucial jurisdictional matter.
5. As far as, the jurisdiction to the worthy Tribunal to amend its orders, the Ordinance provides for the same under section 221 (supra). The original order of remand has been maintained. Only the scope of the appeal has been expanded in the impugned decision. Thus, jurisdictionally the impugned decision is intro vires.
6. Now, when the impugned order is carefully reviewed, it is noted that the worthy Tribunal in its original order had not properly considered the grounds of appeal, which clearly entailed the jurisdictional challenge made by the respondents-taxpayer regarding the selection of this case for audit. Thus, the impugned decision only corrected the scope of consideration for the CIR (Appeals) in deciding the appeal of the respondents-taxpayer. The Commissioner (Appeals) was directed to decide the appeal including the challenge made to the jurisdictional issue regarding the selection of the respondent's case for audit in view of sections 177 and 214-C of the Ordinance.
7. Before parting with this reference, it would be appropriate to note that the direction to decide the appeal in the light of anticipated judgment of the Apex Court is not appropriate. There can be no anticipated judgments of the superior forums. The worthy CIR (Appeals) is to decide the appeal on the basis of the law, as it stands decided by the superior Courts on the date when the decision is to be made by the worthy CIR (Appeals).
8. In view of the above, this Tax Reference is answered in terms stated hereinabove.
' Office is directed to send a copy of this judgment under seal of the Court to the Appellate Tribunal Inland Revenue, Peshawar Bench, Peshawar.