' AQEEL AHMED ABBASI, J.---Through instant reference application, the applicant department has formulated the following question, which according to learned counsel for the applicant, is a question of law arising from the impugned order dated 14.12.2010 passed by the Appellate Tribunal, Inland Revenue (Pakistan) Karachi in I.T.A. No,44/KB/2008, Tax Year 2003:-- "Whether in the facts and circumstances of the case and without considering the legality and merit of amendment of assessm ent for tax year 2003 on the basis of misclassification of a head of income under the then operative Section-122(5)(a), the learned Tribunal was justified in invalidating the amendment order?"
2. Learned counsel for the applicant has read out the impugned order passed by the Appellate Tribunal as well as the order of the two authorities below and submits that the applicant department has the authority to invoke the provisions of section 122(5)(a) of the Income Tax Ordinance, 2001 in the case of misclassification of a head of income, therefore, the impugned order passed by the Appellate Tribunal is liable to be set aside, whereas the reliance placed by the respondent's counsel before the appellate tribunal in the case of Commissioner of Income Tax, North Zone v. Mst. Wazirunnisa Begum, reported as 1972 SCM R 116 is misplaced.
3. Conversely, learned counsel for the respondent has vehemently opposed the contention of the learned counsel for the applicant and submits that the question proposed by the applicant department does not arise at all from the impugned order passed by the Appellate Tribunal. Inland Revenue, in the instant case, as according to learned counsel, in the instant case. The Additional Commissioner of Income Tax, while invoking the provisions of section 122(5A) of the Income Tax Ordinance 2001, passed the amendment assessment order for the tax year 2003, and not under section 122(5)(a) of the Income Tax Ordinance, 2001. Per learned counsel, an appeal was preferred before the Commissioner (Appeals) by agitating the action of the respondent department initiated under section 122(5A), and thereafter, before the Appellate Tribunal. Inland Revenue (Pakistan)
Karachi, whereas, the entire appeal has been heard and decided while examining as to whether amendment assessm ent order can be passed under section 122(5A) of the Income Tax Ordinance, 2001 for the tax year, 2003 or not. Per learned counsel, there has been no ground agitated, argument advanced, or decision given by the Appellate Tribunal regarding application of the provisions of section 122(5)(a) of the Income Tax Ordinance, 2001. Learned counsel for the respondent has argued that the question relating to application of the provisions of section 122(5A) of the Income Tax Ordinance, 2001 for the Tax Year, 2003, has already been decided by this Court in the cases of (1) Messrs Allied Engineering Services Ltd. v. Commissioner of Income Tax and another, reported as 2015 PTD 2562. It has been further contended by the learned counsel for the respondent that the question proposed by the applicant through instant reference application does not arise from the impugned order passed by the Appellate Tribunal, Inland Revenue, as according to learned counsel, the legal ground which has neither been raised or argued nor decided by the Appellate Tribunal, cannot be termed as a question of law arising from the order passed by the Appellate Tribunal. In support of his contention, learned counsel for respondent has placed reliance in the cases of (1) Ghulam Mustafa Jatoi v. Commissioner of Income Tax, Central Zone-B, Karachi, reported as 2006 PTD 1647 and (2) Ahmad Karachi Halva Merchants and Ahmed Food Products v. Commissioner of Income Tax, Karachi, reported as 1982 SCM R 489.
4. While confronted with above factual and legal position, as argued by the learned counsel for the respondent the learned counsel for the applicant could not controvert the same nor could submit any satisfactory response as to maintainability of instant reference application. Accordingly, we are of the considered opinion that the question proposed by the applicant does not arise from the impugned order passed by the Appellate Tribunal, Inland Revenue, as it was neither raised nor argued or has been decided by the Appellate Tribunal through impugned order. Hence, the proposed question cannot be termed as a question of law arising from the impugned order passed by the Appellate Tribunal, whereas the scope of reference under section 133 of the Income Tax Ordinance, 2001 is only limited to the extent of examining the question of law, which was raised, argued and decided by the Appellate Tribunal. Whereas the question which was neither raised or argued or was raised but not decided by the appellate tribunal, or raised for the first time before the High Court through reference application, cannot be termed as a question of law arising from the order of the appellate tribunal. Reliance in this regard has been rightly placed by the learned counsel for the respondents upon above cited cases.
' Accordingly, we do not find any substance in the instant reference application, which is hereby dismissed along with listed application.