MIJZAMIL AKIIT AR SHABIR, J.--- Through this Income Tax Reference filed under Section 133(1) of the Income Tax Ordinance, 2001 ("Ordinance"), the petitioner has called in question order dated 27.09.2018 ("impugned order") passed by the Appellate Tribunal Inland Revenue, Lahore ("Appellate Tribunal") whereby the appeal filed by the respondent No. 1 ("respondent") was allowed.
2. The brief facts of the case are that the respondent is running the business of departmental stores in Lahore and Rawalpindi. The respondent e-filed return of income by declaring loss of Rs. 15,734,624/- for tax year 2014. The case of the respondent was selected for audit through computer ballot under Section 214-C of the Ordinance and deemed assessment of the respondent was amended under Section 122(1) of the Ordinance vide order dated 30.12.2017 and its income was determin ed as Rs. 880,500,469/-. The responde nt filed appeal whereupon the CIR (Appeals) partially remanded back the matter after slight modification. The respondent filed an appeal before the Appellate Tribunal which was allowed vide impugned order whereby certain addition s made by the assessing officer were deleted.
3. Learned counsel for the petitioner has argued that as the matter had been remanded by the CIR (Appeals), therefore, while setting aside the said order , the Appellate Tribunal should have referred the matter back to CIR (Appeals) for determination of the same instead of finally deciding the same itself.
4. From perusal of the impugned order , it is seen that the Appellate Tribunal vacated the orders of the Courts below by deleting the following additions:--- a.Addition under Section 39(3) Rs. 252,369,772 b.Disallowance under Section 21(a) of the Income Tax Ordinance, 2001Rs. 5,111,393 c.Disallowance under Section 21(c) of the Income Tax Ordinance, 2001Rs. 14,705,000 d.Disallowance under Section 174(2) of the Income Tax Ordinance, 2001Rs. 13,486,773 e.Addition under Section 111(1)(a) of the Income Tax Ordinance, 2001Rs. 7,500,000 As regards the addition of Rs. 252,369,772/- under Section 39(3) is concerned, the Appellate Tribunal while setting aside the said addition on factual ground has observed that the DCIR in identical case of Salman Ahmad had allowed relief but rejected the transaction in the respondent's ease to add the said amount in his income although he had produced relevant ledger account wherein particulars of cheques were recorded and amount in question was also verifiable from the record of both the debtor and creditor companies. The disallowance of sales tax of Rs.
5,111,393/- by the DCIR has been set aside by the Appellate Tribunal on the groun d that DCIR wrongly treated the same as tax on profits of the company under Section 21(a) of the Ordinance where as the said tax is a levy on sale and not on income and disallowance was made in a slipshod manner . Disallowance of Rs. 13,486,773/- and Rs.
I4,705,000/- was set aside by the Appellate Tribunal on the ground that same were never confronted to the respondent through a show-cause notice. The addition of Rs. 7,500,000/- was set aside on the ground that such addition was made without issuing sepa rate notice under Section 111 of the Ordinance. All the afore-referred findings are based on determination of fact by the Appellate Tribunal and do not give rise to determination of question of law arising from the impugned order .
5. In response to the argument of the petitioner that the Appellate Tribunal by observing that donation of Rs.
3,216,530/- given to Bahria Dastarkhawn is covered under Section 61 of the Ordinance, it has treated the same as a registered institute under Section 2(36) of the Ordinance as a non-profit organization whereas the said institute was unregistered organization, it is observed that whether the said institute fell under the definition of Section 2(36) or not requires recording of findings of fact which is beyond the jurisdiction of this Court and cannot be determined in reference proceedings. In answer to the argument of the learned counsel for the petitioner that in case the Appellate Tribunal was not inclined to agree with the findings of the CIR(Appeals), instead of deciding the matter itself it should have remanded the same to CIR(Appeals), suffice it to say that the Appellate Tribunal, which is the last facts finding forum being fully equipped with the record, was empowered to determine the facts itself instead of remanding the matter to lower forum. Consequently , we are not inclined to answer the reference.
6. For what has been discussed above, this Reference being devoid of any merit is dismissed.