MASOOD AKHT AR SHAHEEDI, (ACCOUNT ANT MEMBER).-- The titled miscellaneous applications have been filed by the department for recall of the order bearing I.T.As. Nos. 691 to 694/LB/201 1 dated 26.03.2012 passed by this Tribunal.
2. Facts of the case are that main appeals bearing I.T.As. Nos.691 to 694/LB/201 1 were decided by this Tribunal vide order dated 26.03.2012 whereby impugned order passed by the learned CIR(A) and amendment assessment orders passed under sections 122(5A)/122(1) by the Additional Commissioner Inland Revenue were annulled on legal ground related to assumption of re-visional jurisdiction. The Tribunal recalled the said order vide its judgment bearing M.As. Nos.255 to 258/LB/2012 dated 29.06.2015 by way of accepting the departmental miscellaneous applications. Being aggrieved by the treatment of this Tribunal the taxpayer filed reference before the honorable Lahore High Court who vide its order dated 12.11.2018 in I.T.Rs. Nos. 219 to 222 of 2015 has set aside the recalling order of the Tribunal dated 29.06.2015 in the following manner:- "Under the circumstances, even dated orders i.e. 29.06.2015 are set aside. As a consequence, rectification application filed by the respondent department shall be deemed pending before the Appellate Tribunal. The Appellate Tribunal shall provide opportunity of being heard to both the parties and shall give findings of facts and decide the application for rectification in the light of the law laid down for exercising rectification jurisdiction."
According the case is decided afresh on the directions of the honorable Lahore High Court as under .
3. The learned DR has supported the contents of the miscellaneous applications. He submitted that the Tribunal was not justified to hold that the judgme nt of the Islamabad High Court is not an authority for the controversy regarding the import of word "considered by the Commissioner" used in section 122(5A) of the Income Tax Ordinance as this issue was never raised before the court. The discussion made by the honorable court in this regard is sufficient to prove that the issue was raised in the court. He further subm itted that the Tribunal has also exceeded its jurisdiction by holding that judgment of Islamabad High Court was not endorsed by the Supreme Court which is against the facts as the honorable Supreme Court has rejected the Civil Appeals Nos.1664- 1665 of 2009 vide order dated 11.09.2009, filed by the taxpayer against the judgment of the honorable Islamabad High Court. He argued that the Tribunal has ignored the order . passed by the honorable Islamabad High Court in the case of Messrs Pakistan Mobiles Comm unication Limited Islamabad in W.P. No.1 231/201 1 dated 12.04.2012 on the issue of assumption of jurisdiction by the Additional Commissioner Inland Revenue under section 122(5A) of the Ordinance for amendment of assessment order . In view of his submissions he prayed that the order passed by the Tribunal dated 26.03.2012 may be recalled and appeal may be decided on merit as well as facts of the case.
4. The learned AR for the applicant, on the other hand, has opposed the arguments made on behalf of the learned DR. He submitted that the contents of the applications are mere ground of appe al wherein either justification of alleged 'holding certain orders of honora ble High Court and Supreme Court distinguishable' were contested or order of High Court which were passed subsequent to the order sought to be rectified were referred, e.g. C.Ps.
Nos.1664-1665 of 2009 dated 11.09.2009 (SC), 2007 PTR 279 (Trib.), W.P. No.1231/201 1 dated 12.04.2012 (Islamabad H.C.) etc. He claimed that recalling of order by the Tribunal, by relying upon the judgments which were either already discussed in the original order or were later in time, was unjustified as no mistake was apparent from the face of the order . He submitted that the department while filing miscellaneous applications failed to appreciate that there is difference between 'seeking rectification' and filing of 'appeal'. He claimed that objections raised in the titled applications are in the nature of allegations contesting the original order for which proper and legal course was to file appeal and issues raised are not in the nature of mistakes apparent from record for which department has sought invoking of section 221 of the Income Tax Ordinance. He further subm itted that the Tribunal has very limited scope of rectification. In support of his contention he placed reliance on judgments reported as 2008 SCMR 204 = 2008 PTD 253, 1992 PTD 1632 , 1993 SCMR 1232 = 1993 PTD 766 etc. It has been made clear in the said judgments that essential condition for exercise of power of rectification is that the mistake must be apparent on the face of record; mistake which may be seen floating on the surface and does not require re-analyzing the judgments discussed in the order . He further submitted that' through the titled applications the department has sought to form a different opinion on the basis of judgments already discussed in the original order or on the basis of judgments which are later in time. He prayed that in view of principle laid down through the above referred judgments the miscellaneous applications are liable to be rejected.
5. We have heard the arguments of both sides and perused the record as well as case law relied upon by the parties Perusal of judgments (supra) reveals that the Honorable Supreme Court of Pakistan has held that entering into the controversy , investigation Into the matter , reassessment of the evidence or taking Into consideration additional evidence and on that basis interpretation the provision of law and forming of an opinion different from the order will not amount to 'rectification' of the order . The Honorable Supreme Court has also categorically held that any subsequent, decision after the disposal of the case by the assessing officer cannot be said to be a mistake or an error on the face of record and that mere conflict and divergence of opinion cannot give rise to review of the judgment. After perusal of record we agree with the contention of the learned AR that contents of the miscellaneous applications are mere grounds of appeal wherein either justification of alleged 'holding certain orders of honorable High Court and Supreme Court distinguishable' has been contended or order of higher courts which were passed subsequent to the order sought to be rectified have been referred. We are of the considered opinion that objections raised in the titled applications are in the nature of allegations contested the original order for which proper and legal course was to file appeal. The issues raised are not in the nature of mistakes apparent from record for which department has sought invoking of section 221 of the Ordinance.
6. For the above reasons we do not find any merit in the titled miscellaneous applications which are hereby rejected as power of review its order by the Tribunal is not available in the Ordinance as held by the honorable Lahore High Court through its judgment reported as 2013 PTD 2040 in the case of C.I.T . v. Move (Pvt.) Limited.
The main order dated 26.03.2012 shall remain in field. Order accordingly .