M.M. AKRAM, JUDICIAL MEMBER.---- This appeal has been filed by the appellant/taxpayer against an Order No.358/2014 dated 21.01.2015 passed by the learned Commissioner Inland Revenue (Appeals-III), Rawalpindi under section 221 of the Income Tax Ordinance, 2001 ("the Ordinance") for the Tax Year 2012 on the grounds as set forth in the memo. of appeal.
2. Brief facts giving rise to the appea l are that the appellant taxpayer , an individual, derives income from preparation and sale of food items. Return of income tax for the Tax Year 2012 was filed by declaring taxable income at Rs.300,000/-. The case of the appellant was selected for audit under section 2140 of the Ordinance by the FBR on the basis of certain paramete rs. In consequence thereof, proceedings were initiated and show-cause notice under section 122(9) of the Ordinance was issued for providing records and information enumerated therein.
As per the amended order , the appellant did not respond to the notices. Therefore, the Assessing Officer proceeded to assess income of the appellant under section 121(1)(d) of the Ordinance by disallowing purchases at Rs.215,050/- besides partly disallowing travelling and other expenses claimed in the P&L account. The appellant preferred an appeal before the learned CIR(A) who decided the same vide Order No.57/2014 dated 16.09.2014 by directing the Assessing Officer to work out the daily sales at the rate of Rs.6,000/- per day. Being aggrieved, the department assailed the said order before this tribunal by filing appeal on 21.11.2014 under section 131 of the Ordinance. Subsequently , the departmen t after filing second appeal which was pending before this tribunal, also availed simultaneously another remedy by filing rectification application on 21.01 .2015 under section 221 of the Ordinance before the learned CIR(A). Pending the departmental appeal before this tribunal, the learned CIR(A) accepted the rectification application of the department vide order dated 21.01.2015. Felt aggrieved, the appellant has assailed the said order before this forum on a number of grounds which is now subject matter of appeal.
However , it is pertinent to mention here that the departmental appeal bearing I.T.A. No.1027/IB/2014 was earlier rejected by this tribunal vide order dated 29.08.2017 resulting the order bearing No.57/2014 dated 16.09.2014 passed by the CIR(A) was confirmed.
3. This case came up for hearing on 10.02.2020. Learned AR of the taxpayer reiterated the contentions already submitted in the grounds of appeal as set forth in the memo of appeal. On the other hand, learned DR opposed the appeal on the ground that learned Commissioner (Appeals) has passed a speaking order and there is no illegality or lacuna in his order . He, therefore, prays for rejection of appeal.
4. Arguments heard and relevant record available on file carefully perused. The submissions made on behalf of the appellant have substance. The specific point requiring determination by this tribunal would be as to whether two parallel remedies could be availed by the department simultaneously on the same cause against the same impugned order? Undisputedly , the department firstly assailed the appellate order passed by the Commissioner Inland Revenue (Appeals) bearing Order No.57/2014 dated 16.09.2014 by filing an appeal on 21.11.2014 before the tribunal under section 131 of the Ordinance on sole ground which read as under: - "That C1R(A) was not justified in deciding the reduction of daily sales from Rs. 7, 000/- to 6,000/- as neither sales have been estimated nor issue of sales was raised. in the grounds of appeal but on the contrary assessment was finalized under section 121(1)(d) of the Income Tax Ordinance, 2001 through disallowing purchases @ 20% and add backs out of P&L expenses @ 30%."
Admittedly , during pendency of the appe al before this tribunal, the rectification application under section 221 ibid was also preferred by the department on 21.01.2015 before the CIR(A) against the very same judgment seeking the same relief as is sought in the appeal. The contents of the said application are reproduced hereunder: - "Perusal of appellate order divulges that during the course of hearing before the CIR (Appeals) the AR of the taxpayer stated that the appellant' s sales have been exclusively estimat ed and daily sales have been reduced for Rs.7,000/- to 6,000/-.
Whereas the facts of the case are that no sales have been estimated for tax year 2012. Assessment has been finalized at net income of Rs.564,050/- by disallowing purchases @ 20% under section 174(2) and add backs of Rs.31,000/- out of P&L expenses."
The above said rectification application was decided by the learned CIR(A) vide order dated 21.01.2015 prior to deciding the departmental appeal by this Tribunal. Thus it was incumbent upon the department to disclose to the learned CIR(A) that it had already filed the appeal before the Tribunal against his order while filing the rectification application but neither it was pointed out to the learned CIR(A) nor this tribunal while deciding departmental appeal that their rectification application had earlier been decided by the CIR(A) in its favour and the relief sought in the said appeal had been granted. Howeve r, this Tribunal vide order dated 29.08.2017 dismissed the department appeal on its own merit. This approach/attitude of the department is not appreciable and therefore, this tribunal is not sitting to protect the department in such like circumstance particularly when the department had concealed the facts of the case and had not come with clean hands before this Tribunal. I am afraid of this practice of seeking remedy in appeal by the revenue and simultaneously filing an application for rectification of an order is a mockery of law notwithstanding that Section 221 ibid is restricted to rectifying a mistake which must be apparent from the record and its scope cannot be construed as that of a statutory right of appeal provided under sections