1. MUHAMMAD JAWED ZAKARIA, JUDICIAL MEMBER.---This M.A. (Rect) No.27/KB/2009 Rectification Application has been filed by the applicant seeking rectification in the order of Tribunal bearing I.T.A. No.167/KB-2010 dated 29-11-2010 decided by the Division Bench of the Tribunal. The contents of application are as under:-- "1. The above named appellant preferred appeal for Tax year 2003 (I.T.A. No.167/KB/2010) against the order of the Commissioner (Appeals) on legal grounds as the Commissioner (Appeals) had set-aside the order passed under section 122(5A) despite of various legal issues and lacunas.
2. 2.The above cited appeal was disposed of by Honorable Tribunal vide its decision dated 29-11- 2010.
3. 3.The appellant vide Miscellaneous Application dated January 1, 2011 invited attention of Honorable Tribunal that out of the four grounds of appeal raised, only two grounds were disposed (Grounds Nos. 2 and 4) and grounds Nos.1 and 3 were left from consideration. Rectification was sought on following grounds: Ground No.1 Selection of case for audit for Tax year 2003 without giving prior notice and without specifying reasons for selection.
4. Ground No.2. Amending assessment for Tax year 2003 under provisions of section 122(5A) of the Ordinance which was non-existent for said year.
5. Ground No.3 Amending order under section 122(5A) of the Ordinance after conducting audit under section 177 of the Ordinance.
6. Ground No..4 Jurisdiction of AC1T to amend order under section 122(5A) of the Ordinance. . The learned bench of Tribunal vide its decision dated February 8, 2012 rejected the MA on following basis.
7. It is evident from the records that grounds 2, 3 and 4 revolves around the issues discussed in paras 6, 7 and 8 of the order, there is thus no force in the grounds taken by applicant as all these issues have been discussed in the order. As regards ground No.1, the applicant never raised this ground before the assessing officer and participated in the proceedings. He was given full opportunity to defend his case. In these circumstances, there is no merit in this ground even.
5. While disposing of MA on Ground No.1 the Honorable Bench inadvertently ignored to take into consideration following judgments of the superior courts on point of jurisdiction and hence a legal mistake entered into the order.
8. Jurisdiction cannot be conferred by consent of non-objection by Taxpayer 2004 SCMR 1622 (SC)
9. 2004 SCMR 1947 (d)
10. 2008 CLD 149 (S.C. Pak)
11. Legal issue can be raised at any stage 1999 PTD 2895 PLD 1995 SC 66 2006 SCMR 1519 Legal issues can be raised even orally 2000 PTD 359
6. While disposing of MA on Ground No.3 the Honorable Bench cited paragraphs 6 to 8 of their earlier order; whereas the said paragraphs does not contain any finding on the legal issue of passing order under section 122(5A) after conducting audit under section 177 of the Ordinance.
12. Moreover, the issue is decided in favour of the taxpayer by Honorable Tribunal in its following judgments which were binding on the bench of equal strength of Tribunal 2010 PTD (Trib.) 2649 2010 PTD (Trib.) 878 In view of the above stated and identified legal and factual mistakes [A binding judgments, if not followed is a mistake apparent from records as decided in following decision 1983 PTD 246 (HC), 2009 PTD (Trib.) 888 (b), 1998 PTD (Trtib.) 2552, 2003 PTD 260 (Trib.)] apparent from records and floating on the face of the order; it is requested that the highlighted mistakes may kindly be rectified under the relevant provisions of the law to meet the ends of the justice."
2. An identical miscellaneous application for rectification has already been filed vide MA (Rect)
13. No.03/KB/2011 and the same was rejected by the Division Bench of the Tribunal vide MA (Rect)
14. No.03/KB/2011 order dated 08-02-2012. The contents of an earlier M.A. application for Rectification are as under:-- "The above named applicant respectfully invites attention of the Honorable Inland Revenue Appellate Tribunal (IRAT) towards mistake which is not only apparent from record but also floating on the face of the aforesaid order, hence it is submitted as follows: That the appeal filed by the appellant contained four grounds of appeal; which is apparent from the enclosed grounds of appeal as well as the grounds reproduced on pages Nos. 1 and 2 of the order.
2. That the four legal grounds rose before Honorable IRAT can be summarized as under: - Ground No.!. Selection of case for audit for Tax year 2003 without giving prior notice and without specifying reasons for selection.
15. Ground No.2. Amending assessm ent for Tax year 2003 under provisions of section 122(5A) of the Ordinance which was non-existent for said year.
16. Ground No.3. Amending order under section 122(5A) of the Ordinance after conducting audit under section 177 of the Ordinance.
17. Ground No.4. Jurisdiction of ACIT to amend order under section 122(5A) of the Ordinance.
18. 3.That the Honorable IRAT has only given its finding with respect to grounds Nos.2 and 4 on paras 7 and 8 (last two pages) of the order.
19. 4.That the order under consideration does not contain any finding on grounds Nos.1 and 4 raised by the appellant which are inadvertently left from consideration. In view of the above submissions and mistake apparent from record; the Honorable IRAT is humbly requested to kindly rectify its order under consideration to meet the ends of the justice."
20. 3.More or less the grounds were same. The grounds Nos.01 and 03 which were left from consideration by this Tribunal, the same issue has again been raised with the same request the so called pointed out alleged mistake which has been duly considered by the Division Bench of this Tribunal vide order in MA (Rect) No.03/KB/2011 dated 08-02-2012. In penultimate paragraph at page No.03 of the main order the Tribunal observed as under:-- "It is evident from the records that grounds 2, 3 and 4 revolve around the issues discussed in paras. 6, 7 and 8 of the order, there is thus no force in the ground taken by the applicant as all these issues have been discussed in the order. As regards ground No.1, the applicant never raised this ground before the assessing officer and participated in the proceedings. He was given full opportunity to defend his case. In these circumstances, there is no merit in this ground even." </i> 4.Though in rectification application, the learned authorized representative of the taxpayer has not pointed out that the taxpayer has also challenged the main order of this Tribunal i.e. dated 29-11- 2010 in the Hon'ble High Court of Sindh. They have challenged the main appeal before the Hon'ble High Court for the tax year 2003 and the registered number has been allotted vide I.T.R.As. Nos.149, 150 and 151 of 2011 in which the following question of law has been raised:-- "(i) Whether on the facts and the circumstances of the case, the learned Tribunal was justified in confirming the action taken by the respondent No.2 under section 122(5A) of the Income Tax Ordinance, 2001? ii)Whether on the facts and the circumstances of the case, the assessment framed under section 120(1) of the ITO, 2001 can be revised by the respondent No.2 without having the jurisdiction being the subordinate authority to the respondent No.3? iii)Whether on the facts and the circumstances of the case, the proceedings under section 122(5A) of the ITO, 2001 can be initiated without fulfillment of two pre-conditions i.e. erroneous and prejudicial to the interest of the revenue? iv)Whether on the facts and circumstances of the case, the respondent No.2 can re-open an already concluded assessment merely on the basis of change of opinion, assumed facts and mis-interpretation of law? v)Whether on the facts and the circumstances of the case, the penalty under section 180 of the Repeated Ordinance can be levied if no tax is required to be paid along with the return? vi)Whether on the facts and circumstances of the case the tribunal was justified in confirming the levy of penalty under section 108 of the Repealed Ordinance without considering the fact that the applicant on genuine interpretation of section 80D of the Repealed Ordinance had arrived at the conclusion that no tax under section 80D or section 54 was payable by him? "
21. 5.According to the statement of case, this question arises out of the order of the Tribunal for consideration of Hon'ble High Court.
6. We have considered the submissions made by both the representatives and perused the relevant record. From perusal of the record, it is observed that the Miscellaneous Application for Rectification has already been considered and conscious order has been passed by the Division Bench of this Tribunal vide order MA (Rect) 03/KB-2011 dated 08-02-2012. The rectification of mistake once considered and after conscious application of mind with reasons dismissed by the one of the author of main order, the same so called alleged mistake could not be repeated again and again and if done so shall be treated as non-entity, misconceived and not warranted by law and there will be no end of litigation. Once the matter is decided conclusively it attains finality. It is further observed that the matter has already been challenged by the taxpayer before the Hon'ble High Court of Sindh which is sub-judice and pending adjudication before the Hon'ble High Court. It is also observed by this Bench that there is no apparent bona fide mistake pointed out which is floating on the surface of the record. The scope of section 221 of the Income Tax Ordinance, 2001 is very restricted and qualified.
22. This alighted judgment of the Hon'ble Supreme Court applies to instant case with all force and we respectfully following the dictum laid down, hold that it requires no emphasis that the scope of appeal is much wider as compared to the rectification of mistake, as envisaged under section 221 of the Income Tax Ordinance, 2001. In appeal proceedings, an aggrieved party/appellant is allowed to raise all the questions/ grounds of facts and law. However, in case of rectification before the Tribunal, the objection, which is allowed to be raised is restricted to the rectification of mistake which ought to be floating and apparent from surface of the record. It has been held by the various superior courts that where the issue requires debate and long drawn arguments the same would fall outside the scope of "mistake". Such mistakes must be apparent to be floating on the surface of the record. Our this view is fortified by the landmark judgment of the Hon'ble Supreme Court of Pakistan reported as 1992 SCMR 687 = 1992 PTD 570 wherein their lordships held that:-- Section 35 of the repealed Income Tax Act, 1922, hereinafter referred to as 'The Act' confers a power to rectify any mistake in the order which is apparent from the record Such power can be exercised Suo motu or if it is brought to the notice by an assessee. Therefore, essential condition for exercise of such power is that the mistake should be apparent on the face of record; mistake which may be seen floating on the surface and does not require investigation or further evidence. The mistake should be obvious that on mere reading the order it may immediately strike on the face of its. Where an officer exercise the powers under section 35 entering into the controversy, investigates into the matter, re-asses the evidence or takes into consideration additional evidence different from the order, then it will not amount to "rectification" of the order. Any mistake which is not patent and obvious on the record, cannot be termed to be an order which can be corrected by exercising powers under section 35.
23. 4(sic) Filing of instant rectification application time and again on the same issue which simultaneously has been challenged before the Hon'ble High Court which is still pending adjudication, it appears that this miscellaneous application for rectification is nothing but wastage of precious time of the taxpayer and of the Court and burden on the courts where scores of appeals are pending adjudication. Further, if this tendency is going to be escort free, the taxpayer will also be burdened and have to incur unnecessary costs. After rejection of earlier Miscellaneous Application in taxpayer's own case on the identical facts and circumstances, the proper remedy is available with the taxpayer to file Reference before the Hon'ble High Court and this remedy was availed by the taxpayer. However, proper remedy has already been availed by the taxpayer by filing reference before the Hon'ble High Court.
24. 3(sic) Under these circumstances and ratio decidendi of the judgment of the Hon'ble Supreme Court we do not find any merit in this Miscellaneous Application which is hereby dismissed.