MUHAMMAD SAJID MEHMOOD SETH I, J. Through instant Reference Application under Section 133 of the Income Tax Ordinance, 2001 ("Ordinance of 2001 "), the following questions of law, asserted to have arisen out of impugned order dated 02.12.2015, passed by learned Appellate Tribunal Inland Revenue, Lahore Bench, Lahore ("Appellate T ribunal "), have been proposed for our opinion:-
(i) "Whether the learned Appellate Tribunal was justified in accepting the tax withholding on reduced rate in view of Clause 45 of Part IV of the Second Schedule, to the Income Tax Ordinance, 2001 whereas the product of the taxpayer did not fall in zero rated sector?"
(ii) Whether the learned Appellate Tribun al was justified to ignore the fact that as per PCSIR report as well as its own admission, the registered person was engaged in manufacturing of 'diapers of cellulose wadding' classifiable under the PCT Code 4818.4020, hence, benefit of zero rating was neither legally available to the registered person under SRO 1 161 nor under SRO 509?
(iii) Whether the order passed by the learned Appellate Tribunal IR is a speaking and judicial order as per provisions of Section 24-A of General Clauses Act, 1897?"
2. Brief facts of the case are that respondent-taxpayer was issued show-cause notice regarding short payment of income tax, which culminated in passin g Order-in-Original dated 30.01.2014. Feeling aggrieved, respondent- taxpayer filed appeal 'before learned Com missioner (Appeals), which was dismissed vide order dated 05.01.2015.
Being dis-satisfied, respondent-taxpayer filed second appeal before learned Appellate Tribunal, which has been disposed of and matter has been remanded to learned Commissioner (Appeals ) vide order dated 02.12.2015, hence, this Reference Application.
3. Learned counsel for respondent-taxpayer , at the very outset; submits that learned Appellate Tribunal has remanded the matter to Commissioner (Appeals), therefore, instant Reference Application is not maintainable against remand order .
4. When confronted, learned counsel for applicant department, despite arguing the case at some length, could not give any satisfactory answer .
5. Heard. Record perused.
6. Perusal of record shows that learned Appellate Tribunal has not determined the core issue whether HS Code of diaper is distinct and different from the HS Code of Textile Articles and without giving clear finding that respondent- taxpayer was held entitled to zero rating and decided the matter through impugned order . Since material aspects of the matter have not been dilated upon by learned Appellate Tribunal, therefore, impugned order does not appear to be in conformity with the provisions of Section 24-A of General Clauses Act, 1897 and law laid down by Hon'ble apex Court in "Commissioner of Income Tax, Companies Zone-II, Karachi v. Messrs Sindh Engineering (Pvt.)
Limited, Karachi" (2002 SCMR 527 = 2002 PTD 419 ).
7. In view of above, we are inclined to set-aside the impugned order and matter is remanded to learned Appellate Tribunal for decision afresh through speaking order strictly in accordance With law , after hearing both parties.
8. This reference application is disposed of accordingly .
9. Office shall send 'a copy of this Order under seal of the Court to the Appellate Tribunal as per Section 133(5) of the Income Tax Ordinance, 2001.