MUHAMMAD SAJID MEHMOOD SETHI, J. This order shall also dispose of ITR No 238466 of 2018 titled "Commissioner Inland Revenue v. M/s. Ghani Glass Limited" as common questions of law and facts are involved in these cases.
2. Through this Reference Application under Section 133 of the Income Tax Ordinance, 2001 ("the Ordinance of 2001"), following question of law, arising out of impugned consolidated order dated 04.01.2018, passed by learned Appellate Tribunal Inland Revenue, Lahore Bench, Lahore ("Appellate Tribunal "), has been pressed and argued for our opinion:- "Whether under the facts and circumstances of the case, the Appellate Tribunal Inland Revenue was justified to recall its earlier order dated 04.01.2018 for re-fixation for hearing and re-adjudication beyond its jurisdiction because no mistake was floating on the surface of the order?"
2A. Brief facts of the case are that return for the tax year 2005, filed by respondent-taxpayer , was considered as deemed assessment, however , it was amended under Section 122(5A) of the Ordinance of 2001, vide Order-in- Original dated 30.06.201 1. Feeling aggrieved, respondent-taxpayer filed appeal before learned Commissioner (Appeals), which was allowed vide order dated 30.06.2012. Being dis-satisfied, applicant-department filed appeal before learned Appellate Tribunal, which was allowed vide order dated 04.01.2018. Subsequently , respondent- taxpayer filed miscellaneous application which has been allowed vide order dated 28.05.2018. Hence this Reference Application.
3. At the very outset, learned counsel for applicant department was confronted that the judgment in Messrs MFMY Industries Ltd v. Federation of Pakistan through Ministry of Commerce and others (2015 SCMR 1550 ), relied upon by learned Appellate Tribunal while passing the impugned order , is not attracted in the circumstances of this case. However , despite arguments at some length, he could not satisfy that rectification jurisdiction can be invoked while relying on the judgment supra .
4. Heard. Available record perused.
5. Perusal of record shows that learned Appellate Tribunal accepted the rectifica tion application while relying on findings of Hon'ble Supreme Court of Pakistan in Messrs FMFY Industries Ltd.'s case supra , wherein it is held that maximum time within which the judgment should come i.e. pronounced was 120 days, otherwise the judgment shall stand weakened in quality and efficiency . However , this does not mean that the judgment announced beyond 120 days becomes nullity in the eye of law, hence, learned Appellate Tribunal has wrongly invoked its jurisdiction by allowing the rectification application on the ground that Appellate Tribunal annou nced the order after 117 days.
Thus, the impugned order , having been passed as a result of misconception of law laid down on the subject, is not sustainable in the eye of law .
6. In view of above, our answer to above question is that Appellate Tribunal was not justified to, recall its earlier order .
7. This Reference Application, alongwith connected reference application, is decided in favour of the applicant- department and against the respondent-taxpayer .
8. Office shall send a copy of this order under seal of the Court to learned Appellate Tribunal as per Section 133(5) of the-Income Tax Ordinance, 2001.