NAZIR AHMAD, (JUDICIAL MEMBER).---The above titled appeal pertaining to tax year 2009 has been filed at the instance of the taxpayer assailing the appellate order dated 20.01.2015 recorded by CIR (Appeals-II), Lahore.
2. The facts in brief as stated are that the taxpayer, a private limited company, deriving income from manufacturing of other textiles, filed return for the year under consideration declaring loss of Rs.(119,938,518); which was taken as an assessment order in terms of section 120(1) of Income Tax Ordinance, 2001 (hereinafter called the Ordinance). Subsequently, the case was selected for audit under section 177 of the Ordinance by the Commissioner Inland Revenue, Zone-III, RTO, Lahore, and the taxpayer was informed accordingly by way of issuance of letter dated 06.06.2011. Therefore, on the basis of audit report, show-cause notice was issued wherein certain discrepancies were confronted to the taxpayer by way of issuance of statutory notices followed by reminder under section 121(1)(d) of the Ordinance but remained uncomplied with. Resultantly, the proceedings were culminated in passing of amended assessment order under sections 122(1)/122(5) of the Ordinance dated 03.12.2014, wherein total income of the taxpayer was determined at Rs.255,120,897/-. Feeling aggrieved, the taxpayer preferred appeal before CIR (Appeals-II) Lahore, which was dismissed. Still discontented, the taxpayer has come up in further appeal before this Tribunal.
3. During the course of hearing, the learned counsel appearing on behalf of the taxpayer has opted to assail the orders passed by both authorities below on legal plane of selection of the case for audit. He has elaborated that selection of the case for audit under section 177 of the Ordinance is illegal in the light of ratio settled in a reported judgment of the Honourable Lahore High Court cited as 2012 PTD 1815 case titled as M/s. Chenone Stores Limited v. F.B.R., wherein it has been held in an unequivocal manner that any case could be selected for audit by the learned Commissioner from 13.09.2001 till 27.10.2009. He contends that till 27.10.2009 the case of the taxpayer was never selected by the Commissioner. However, after that day the case could be selected for audit by the FBR only and not by the Commissioner Inland Revenue. On the strength of foregoing assertions, learned counsel seeks vacation of the orders passed by both authorities below.
4. On the other hand, learned DR appearing on behalf of the department has fully supported the selection of the case for audit under section 177 of the Ordinance by the Commissioner simply by reiterating the basis evolved in the body of assessment order.
5. Arguments heard and record perused. Admittedly the case of the taxpayer was selected for audit by the Commissioner Inland Revenue, which is contrary to the ratio settled in the above referred judgment delivered by the Honourable Lahore High Court in the case titled as Messrs Chenone Stores Ltd. v. F.B.R etc., wherein it has been held as under:-- "The first proviso to sections 177(1) i.e., 177(1)(a) and (b) is different from Section 177(1). Unlike section 177(1), it stands excluded for the purposes of section 214C and therefore assumes an independent role of empowering the Commissioner to practically select a taxpayer for audit without any guidelines. Hence, the said first proviso equips the Commissioner with the arbitrary power to pick and choose any taxpayer for audit of its tax affairs, which as discussed above, is ex facia discriminatory. Second, the impugned notices shows (and as admitted by the departmental representative) the power is not being used for audit but to hold a roving inquiry into the affairs of the petitioner as an investigative tool which is also, offensive to the overall scheme of self assessm ent and the legislative policy behind the Ordinance. The first proviso, therefore, acts to efface the legislative policy of self assessment and voluntary compliance running through the Ordinance and tries to turn back the clock of legislative history resulting in nullifying the concept of deemed assessm ent and reintroducing regular assessment of the erstwhile Income Tax Ordinance, 1979. The first proviso to section 177(1) of the Ordinance is, therefore, inherently discriminatory hence violative of Articles 10A, 18 and 23 of the Constitution besides being inconsistent to the scheme of the Ordinance. The first proviso to section 177(1) of the Ordinance cannot be read down, however, it can be severed from the statute in order to protect the legislative theme behind the Ordinance and to maintain the constitutionality of the remaining statute. For the above reason, first proviso to section 177(1) of the Ordinance is struck down as being unconstitutional and illegal. With this declaration the second proviso, to section 177(1) becomes practically redundant and ineffective."'
6. In view of the above settled ratio, the orders passed by both authorities below are hereby vacated. Since, appeal of the taxpayer has been accepted by us on legal plane of jurisdiction, therefore, there is no need to adjudicate upon rest of the grounds taken as per memo of appeal.
7. However, the department is at liberty to take any action as provided under the law after affording proper opportunity of being heard to the taxpayer.
8. Appeals are disposed of in the manner and to the extent indicated above.
Sd/- (NAZIR AHMAD)
Judicial Member Per Abdul, Nasir Butt, Accountant Member
9. I have gone through the proposed order authored by my learned Judicial Member, Mr. Nazir Ahmad, but I respectfully disagree with him on the point of Selection of the case for Audit under section 177 of the Income Tax Ordinance, 2001 for the following observations made by me.
10. The main legal issue involved in this case is "whether or not selection for audit for tax year 2009 by the Commissioner under Se'ction 177 of the Income Tax Ordinance, 2001 was lawful." In this regard, the learned A.R. of the Taxpayer has mainly relied on the Hon'ble Single Bench of Lahore High Court's Order in the case of Messrs Chenone Stores Ltd. v. FBR 2012 PTD 815 and claims that selection for audit was illegal on the basis of the said judgment. However, perusal of the afore cited judgment reveals that it does not apply to the Tax Year 2009. However, in another case, the Division Bench of the Honourable Lahore High Court vide its judgment in the case of Messrs Kohinoor Sugar Mills in Writ Petition No.4691 of 2010) and 310 other Petitions, while dismissing all Petitions has held that the Commissioner had the jurisdiction to issue notices in exercise of his powers under section 177 of the Income Tax Ordinance, without selection of a person for audit by the FBR under section 214C of the Income Tax Ordinance. The arguments of the learned counsel for the Petitioners that this power of Commissioner was taken away by virtue of Section 214C through Finance Act; 2010 is misconceived and not supported by the language of sections 177 and 214 C. If at all there was any ambiguity in the matter, the legislature itself clarified and explained the same by inserting the afore-noted explanation where for removal of doubt it was declared that the powers of the Commissioner under section 177 were independent of the powers of the Board under section 214C and nothing contained in section 214C restricted the powers of the Commissioner to call for record or document including books of accounts of the taxpayer for audit and to conduct audit under section 177 of the Income Tax Ordinance. The relevant extracts from the judgment of the Honourable High Court in the case of Messrs Kohinoor Sugar Mills in Writ Petition No. 4691 of 2010 are reproduced as under: "Para 23. The argument of the learned counsel for the petitioner that this power of the Commissioner was taken away by virtue of section 214C through Finance Act, 2010 is misconceived and not supported by the language of sections 177 and 214C . If at all there was any ambiguity in the matter the legislature itself clarified and explained the same by inserting the aforesaid explanation where for removal of doubt it was declared that powers of the Commissioner under section 177 were independent of the powers of the Board under section 214C and nothing contained in Section 214C restricted the power of the Commissioner to call for the record or documents including books of accounts of the taxpayer for audit and to conduct audit under section 177 of the ITO.
Para 26.---Perusal of the Income Tax Ordinance, 2001 indicates that mere selection of the taxpayer for audit and calling of books of accounts to verify the version, declared in his return under the USAS which is the main theme on which the entire structure of the Income Tax Ordinance, 2001 has been built, does not cause any injury / prejudice to the taxpayer."
11. In the light of afore referred judgment in Writ Petition No.4691 of 2010 by the Honourable Lahore High Court the contentions made by the learned A.R. are not tenable and I am of the opinion that the case was lawfully selected for audit under section 177 of the Income Tax Ordinance, 2001 for the Tax Year 2009. Therefore, the order passed by the learned CIR (A) is hereby maintained and the appeal of the taxpayer stands dismissed.
Sd/- (ABDUL NASIR BUTT)
Accountant Member
12. Since the difference of opinion has arisen between the learned Members of the Division Bench on the following points, the case should be referred to the Honourable Chairman of ATIR for reference to a Third Member who should resolve the difference: 'QUESTIONS'
"Whether or not selection for audit for tax year 2009 by the Commissioner under Section 177 of the Income Tax Ordinance, 2001 was lawful?
Whether on the facts and circumstances of the case as per law of precedent the Judgment of the Honourable Division Bench in the case of Messrs Kohinoor Sugar Mills in Writ Petition No.4691 of 2010 is binding on this Division Bench of the Tribunal and prevail over and above the Judgment of the Honourable Single Bench in the case of Chen One Stores Ltd. relied by the learned A.R. or the Appellant?"
Sd/- (ABDUL NASIR BUTT)
Accountant Member
13. NAZIR AHMAD, (JUDICIAL MEMBER).---I have gone through the proposed dissenting note of my learned brother Accountant Member Mr. Abdul Nasir Butt. I fully endorsed the view point taken by your goodself but as a matter of fact the case law relied on in your note was neither presented at the time of hearing by the learned DR nor it was in my knowledge. Hence, reliance was placed on the previous judgment of Honourable Lahore High Court. Therefore, the decision of selection of the case on the basis of Lahore High Courts judgment cited by you is correct and I endorse the same.
However, at the time of hearing learned counsel besides raising legal issue also argued the case on merits taken as per memo. of appeal in detail but while drafting the order only the legal issue was taken up and decided in favour of the appellant/taxpayer. Therefore, merits of the case could not be considered. In this view of the matter, it will be appropriate and in the fitness of things to decide the case on merits in the following manner:-
14. While arguing the case on merits, the only ground which the learned counsel pressed is with regard to the addition made on account of 'short term loan' under section 111(1)(b) of the Ordinance whereas rest of the grounds were not pressed. While explaining, the said addition of short term loan, he submits that the alleged short term loan was advanced by the National Investment Bank
(NIB) in the tax year 2008 as appearing in the balance sheet for the tax year 2008 whereas the same has been added in the tax year under consideration i.e. 2009, which is contrary to the provisions of section 111(2) of the Ordinance. He further submits that the banking company has also filed a law suit bearing No.146/2009 before the Honourable Lahore High Court for the recovery of loan, which is pending before the court. He adds that the bank loan is verifiable and documentary evidence was provided before the two forums below but unfortunately they have not appreciated.
He concluded that the addition under section 111(1)(b) of the Ordinance made in the wrong tax year is illegal and merits deletion.
15. On the other hand, the learned DR appearing on behalf of the department has fully supported the action of both authorities below by arguing that the taxpayer failed to substantiate his version on the issue, under consideration with documentary evidence. Tnerefore, the short term loan declared by the taxpayer was rightly added under section 111(1)(b) of the Ordinance.
16. Arguments heard and record perused. The sole ground which needs adjudication is regarding addition made under section 111(1)(b) of the Ordinance on account of short term loan obtained from NIB amounting to Rs.3,296,667,392/- not in the relevant tax year as per section 111(1)(2). The relevant portion of the said section is reproduced hereunder for the sake of convenience:--
111. Unexplained income or assets.- (1) Where---
(a) any amount is credited in a person's books of accounts;
(b) a person has made any investment or is the owner of any money or valuable article; or
(c) a person has incurred any expenditure, [; or] [(d) any person has concealed income or furnished inaccurate particulars of income including--
(i) the suppression of any production, sales or any amount chargeable to tax; or
(ii) the suppression of any item of receipt liable to tax in whole or in part,] and the person offers no explanation about the nature and source of the amount credited or the investment, money, valuable article, or funds from which the expenditure was made [, suppression of any production, sales, any amount chargeable, to tax and of any item of receipt liable to tax] or the explanation offered, by the person is not, in the Commissioner's opinion, satisfactory, the amount credited, value of the investment, money, value of the article, or amount of expenditure [, suppressed amount of production, sales or any amount chargeable to tax or of any item of receipt liable to tax] shall be included in the person's income chargeable to tax under head "Income from [Other Sources"] to the extent it is not adequately explained.
[Provided that where a taxpayer explains the nature and source of the amount credited or the investment mace, money or valuable article owned or funds from which the expenditure was made, by way of agricultural income, such explanation shall be accepted to the extent of agricultural income worked back on the basis of agricultural income tax paid under the relevant provincial law]
(2) The amount referred to in subsection (1) shall be included in the person's income chargeable to tax in the tax year [to which such amount relates.] (underlying for emphasis) ----From the plain reading of the above quoted underlined provision, it follows that any amount should only be added in the person's income chargeable to tax in the year to which such amount relates meaning thereby that the amount which was invested, obtained' or owned by a person shall only be added under subsection (b) in the year of investment and not in the subsequent or prior year. From the examination of balance sheet of the taxpayer it is crystal clear that the amount of Rs.3,296,667,392/- was appearing at note No. 8 under the head current liabilities (short term bank borrowing) in the tax year 2008 and the same is also appearing in the tax year 2009, which clearly indicates that this amount was obtained by the taxpayer from NIB Bank in the year 2008.
Therefore, the addition of the said amount in the year 2009 is contrary to provisions of section 111(2) of the Ordinance. Hence, we are inclined to delete the addition made in the wrong tax year i.e. 2009 instead of tax year 2008. Hence, the same is deleted.
17. Even otherwise, the addition of the amount in question under section 111(1)(b) of the Ordinance cannot be made in the year under consideration as the amount is sufficiently explainable being received from the Bank (NIB) as appearing in the balance sheet and the said Bank through a suit in the Honourable Lahore High Court has initiated recovery proceedings.
18. The appeal is decided in the manner and to the extent indicated above.
Sd/- (NAZIR AHMAD)
Judicial Member Per Abdul Nasir Butt, Accountant Member again disagreeing with the learned Judicial Member on second draft allowing appeal on other grounds:
19. I have again gone through the second draft authored by my learned Judicial Member, Mr. Nazir Ahmad, but I respectfully disagree with him on the point of taking and allowing the appeal by deleting the audition under section 111(1)(b) of the Income Tax Ordinance, 2001, for the following observations made by me.
20. It would be fair and appropriate to recapitulate the facts of the case for arriving at just and proper conclusion.
21. Brief facts of the case necessary for this Second Note by me are that the appellant, a private limited company, deriving income from Manufacturing of other textiles, filed return for the year under consideration declaring loss of (Rs.119,938,518) which was taken as an assessment order in terms of section 120(1) of the Income Tax Ordinance, 2001. Thereafter the case was selected for Audit under section 177 ibid by the Commissioner Inland Revenue and the taxpayer was informed by way of issuance of letter dated 6-6-2011. Therefore, on the basis of audit report, show-cause notice was issued wherein certain discrepancies were confronted to the taxpayer by way of issuance of statutory notices followed by reminder under section 121(1)(d) of the Ordinance.
Resultantly, the proceedings were culminated in passing of amended assessment order under sections 122(a)/122(5). Feeling aggrieved the taxpayer filed appeal before the CIR (A-II), Lahore, which was dismissed. Being aggrieved and dissatisfied with the order of the learned CIR(A), the instant appeal has been field before this Tribunal.
22. My brother, the learned Judicial Member, drafted the order and allowed the appeal on the legal plane that the selection of the case for Tax Year 2009 by Commissioner and mainly relied on the Hon'ble Single Bench of Lahore High Court's Order in the case of Messrs Chen One Store Ltd v. FBR (2012) PTD 1815. However, the undersigned respectfully disagreed with the learned Judicial Member and cited another case of the Division Bench of the Honourable Lahore High Court in the case of Messrs Kohinoor Sugar Mills in Writ Petition No.469 of 2010 and 310 others petitions, wherein it has been held that the Commissioner had the jurisdiction to issue notices in exercise of his powers under section 177 of the Income Tax Ordinance. Therefore, in my opinion the case was lawfully selected for audit under section 177 of the Income Tax Ordinance, 2001 for the Tax Year 2009. Since the difference of opinion had arisen between the learned Members of the Division Bench, therefore, following question were formulated for reference to Third Member to resolve the difference: QUESTIONS "Whether or not selection for audit for tax year 2009 by the Commissioner under section 177 of the Income Tax Ordinance, 2001 was lawful?
Whether on the facts and circumstances of the case as per law of precedent the Judgment of the Honourable Division Bench in the case of Messrs Kohinoor Sugar Mills in Writ Petition No.4691 of 2010 is binding on this Division. Bench of the Tribunal and prevail over and above the Judgment of the Honourable Single Bench in the case of Chen One Store Ltd. relied by the learned A.R. of the Appellant?"
23. However, the learned Judicial. Member was very kind to endorse the viewpoint taken by me and has observed that at the time of drafting the order the said Judgment of Messrs Kohinoor relied by me was not in the knowledge of the learned Judicial Member hence incorrect conclusion was arrived at and the appeal was decided in favour of the Taxpayer on legal plane.
24. However, the learned Judicial Member, in his second draft has now taken the other grounds of appeal which were raised in the Memo. of Appeal and has deleted the addition made under section 111(1)(b) of the Income Tax Ordinance, 2001.
25. From perusal of the Original Order of the learned Judicial Member, I have found that vide Paragraph 3, the learned Judicial Member has observed as under:-- "3. During the course of hearing, the learned counsel appearing on behalf of the taxpayer has opted to assail the order passed by both authorities below on legal plane of selection of the case for audit. He has elaborated that selection of the case for audit under section 177 of the Ordinance is illegal in the light of ratio settled in a reported judgment of the Honourable Lahore High Court cited as 2012 PTD 1815 case titled as Messrs Chenone Store Limited v. FBR, wherein it has been held in an unequivocal manner that any case could be selected for audit by the learned Commissioner from 13-9-2001 till 27-10-2009. He contends that till 27-10-2009 the case of the taxpayer was never selected by the Commissioner. However, after that day the case could be selected for adult by the FBR only and not by the Commissioner Inland Revenue. On the strength of foregoing assertions, learned counsel seeks vacation of the orders passed by both authorities below."
(Underlined and bold by me)
26. From perusal of the above extract from the order of the learned Judicial Member, it is evident that the learned counsel for the Taxpayer had only opted to assail the orders of the authorities below on the legal plane of selection of the case for audit, therefore, now giving findings on other grounds of appeals and laying hands on the same which were not stressed by the learned counsel for the appellant, are unwarranted and legally unsustainable.
27. Reverting back to the impugned order of the learned CIR(A), it is clearly observed that he had dismissed the subject appeal by stating as under: "During the course of appellate proceedings, the learned AR has elicited certain documents in support of his contentions. I have examined the said documents but I am of the view that the same cannot be entertained at this stage as the law restricts the undersigned to do so.
Subsection (5) of section 124 of the Ordinance stipulates that "The Commissioner (Appeals) shall not admit any documentary material or evidence which was not produced before the Commissioner unless the Commissioner (Appeals) is satisfied that the appellant was prevented by sufficient cause from producing such material or evidence before the Commissioner". The right forum to consider and entertain the supportive documents was the OIR where despite being provided with reasonable opportunity, the appellant failed to furnish any such documentary evidence. Therefore, non-compliance is to be considered as willful and deliberate.
Since the appeal has been decided on the legal ground I feel no need to adjudicate the other grounds."
28. From perusal of the above findings, of the learned CIR (A), it is observed that he had dismissed the appeal only on legal ground and no findings have been given by him in respect of merit of the case. Perusal of the above findings of the learned CIR(A) further shows that during the appellate proceedings before the learned CIR (A) certain documents were produced before him which had not been earlier produced before the OIR, and the learned CIR(A) has no powers to take evidence, details and documents which were not produced before the CIR (A). The law in this regard is very clear, the Taxpayer has not proved sufficient cause which prevented him to furnish the relevant documents, details before the learned OIR. The submission of fresh evidence/documents which were not produced earlier before the OIR was outside the jurisdiction of the learned CIR (A). In this view of the matter, instead of upholding the order of the learned OIR (A), we deems to appropriate to remand the case back to the CIR for de novo proceedings. The Taxpayer is directed to furnish all the available relevant documents, details and evidence which he produced before the learned CIR
(A) which were not entertained by the learned CIR(A) due to embargo placed on him under section 128(5) of the Income Tax Ordinance, 2001. The OIR is also directed to give reasonable opportunity of being heard to the appellant to present his viewpoint as well as documents.
29. Since the different of opinion has arisen between the learned Members of the Division Bench on the following question, the case may kindly be referred to the Honourable Chairman of ATIR for reference before the Third Member to resolve the difference: QUESTIONS Whether on the facts and circumstances of the case, when the appeal' has earlier been decided by this Tribunal only on legal plane can the Tribunal again lay its hands to other grounds of appeal, which were not opted to be assailed by the Taxpayer.
Whether when the learned CIR(A) has dismissed the appeal only on legal ground and has not entertained the evidence placed before him, would it not be more appropriate to remand back the case to the OIR for detailed examination of the facts of the case and carry out de novo proceedings." Sd/- (ABDUL NASIR BUTT)
Accountant Member
30. NAZIR AHMAD, JUDICIAL MEMBER.---I have gone through the second draft of dissenting note authored by my learned brother Accountant Member and I would like to point out the following facts just to keep the record straight:-- i) Firstly at the time of hearing, the learned counsel appearing on behalf of the taxpayer has argued the case both on legal plain of selection of the case for audit as well as on merits only the addition made under section 111(1)(b) of the Ordinance was pressed. This fact is duly recorded the court register. Probably, the learned Accountant Member have overlooked para. 6 of my earlier draft order, which is reproduced hereunder:- "In view of the above settled ratio, the orders passed by both authorities below are hereby vacated.
Since, appeal of the taxpayer has been accepted by us on legal plane of jurisdiction, therefore, there is no need to adjudicate upon rest of the grounds taken as per memo. of appeal." ii) Secondly, the addition made under section 111(1)(b) of the Ordinance was also raised before the first appellate authority i.e., CIR (Appeals), which is very much mentioned in the impugned order but the same was not adjudicated by learned. CIR (Appeals) with the remarks that "since, the appeal has been decided on legal plain, therefore, I feel no need to adjudicate the other grounds" meaning thereby that the grounds were raised and argued but since, the appeal was decided on legal plain, therefore, the other grounds of appeal remained un-adjudicated.
31. This situation leads me to formulate the following questions besides the one formulated by my learned brother Accountant Member. Since, different of opinion has arisen, therefore, the matter is referred to the Honourable Chairperson for the appointment of third Member to resolve the controversy by answering the following question formulated by the undersigned as well as by my learned brother Accountant Member: - i) Whether or not there is any bar on the Tribunal for entertaining any evidence furnished at the time of hearing. ii) Whether or not addition under section 111(1)(b) of the Ordinance made in a wrong tax year merits deletion.
Sd/- (NAZIR AHMAD)
Judicial Member As Per Javed Iqbal, Chairman:-- Abuzar Husain for Appellant.
Mrs. Fiza Batool, D.R. for Respondent. Date of hearing: 19th November, 2015.
32. The matter has been referred to me for disposal of the difference of opinion, which has been arisen while deciding the appeal between the learned Members of the Division Bench. I have heard the arguments of the representatives of both the parties and have also perused the above referred views of my both learned brothers, impugned order of the learned CIR(A), order of the ACIR, case law and other relevant record of the case. Both the learned members have framed questions which are reproduced for the sake of convenience.
Questions by Accountant Member:- "Whether on the facts and circumstances of the case, when the appeal has earlier been decided by this Tribunal only on legal plane, can the Tribunal again lay its hands to other grounds of appeal which were not opted to be assailed by the Taxpayer."
"Whether when the learned CIR(A) has dismissed the appeal only on legal grounds and has not entertained the evidence placed before him,'would it not be more appropriate to remand back the case to the OIR for detailed examination of the facts of the case and carry out de novo proceedings."
Questions by Judicial Member:- i) Whether or not there is any bar on the Tribunal for entertaining any evidence furnished at the time of hearing. ii) Whether or not addition under section 111(1)(b) of the Ordinance made in a wrong tax year merits deletion.
33. The first question raised by the learned Accountant Member that "Whether on the facts and circumstances of the case, when the appeal has earlier been decided by this Tribunal only on legal plane, can the Tribunal again lay its hands to other grounds of appeal which were not opted to be assailed by the Taxpayer." is incompetent for the reason that the order drafted by the learned Judicial member has not attained the finality, hence there was still a wider space to elaborated the facts which were not discussed earlier till the signatures of both the learned members.
34. As far as 2nd question of the learned Accountant Member and the questions (i) and (ii) of the learned Judicial Member are concerned, the basic thought of the three questions is same. The question, whether the Tribunal can entertain evidence which was not furnished before the lower authorities, I am of the considered opinion that in a number of judgments, not only the Tribunal but also the higher legal for a have accepted the evidences which goes to the roots of the case.
Admittedly the in the present case short term loan was advanced by the National Investment Bank
(NIB) in the tax year 2008 whereas the same has been added in the tax payer under consideration i.e. 2009, which is contrary to the provisions of section 111(2) of the Ordinance. Bare perusal of the order of the learned CIR(A) also reveals that evidence of loan was also produced before the learned CIR(A) who rejected the same with the observation that "the same cannot be entertained at this stage as the law restricts the undersigned to do so". It is also pertinent to mention here that the OIR passed the amended order under section 122(1)1(5) of the Ordinance ex parte which is also against the principle of natural justice i.e. audi alteram partum. Keeping all these facts and circumstances in view, I, being in agreement with the learned Judicial Members, hold that he has rightly deleted the addition which calls for no interference.
35. The remand of case for de novo consideration is not needed in this case because the evidence is very much clear hence, refrain to do so.
36. In view of the above discussion, the questions raised by both the learned members are disposed of as above.
Sd/- (JAVED IQBAL)
Chairman