At the outset, learned counsel for the applicant is confronted with the impugned judgment of Appellate Tribunal Inland Revenue ("Appellate Tribunal"), which is passed on miscellaneous application for rectification. The application was moved by applicant department which was dismissed.
2. Learned counsel has not been able to deny that the issue has already been settled by this Court by holding that tax reference is not maintainable against an order dismissing an application for rectification. Reliance can be made on Messrs Hong Kong Chinese Restaurant, Main Boulevard Gulberg, Lahore v. Assistant Commissioner of Income Tax, Circle 6, Lahore and another (2002 PTD 1878), which was followed in the case reported in The Commissioner Inland Revenue v. Tariq Mehmood and others (2015 PTD 120). Operative part of the judgment is reproduced hereunder:-
9. Following the dictum in reproduced part of Messrs Hong Kong Chinese Restaurant Case (supra), provisions of the Ordinance of 2001 are analyzed; limitation provided under section 221 is four years; whereas limitation provided for filing Reference Application before this Court, under section 133, is ninety days. Their lordships were rightly skeptical in their view; if reference is allowed to be filed out of an order under section 221, it can be misused for extending the period of limitation provided under Section 133 of the Ordinance. Yet, a person aggrieved by a change in order under section 132 cannot be deprived of the remedy provided under the Statute.
It may be explained that parameters provided for exercise of jurisdiction under section 133, by this Court, shall apply with full force i.e., if any question of law arises out of the changed order, reference application shall be maintainable. This opinion is supported by their lordships observation in following paragraph from Messrs Hong Kong Chinese Restaurant case:-- "12. In our view the provisions of section 136 both before and after the amendment in the year, 1997 and then in the year 2000 are sufficiently clear to reject the contention of the learned counsel. The provisions of section 136 continue to make a specific reference to the order of the Tribunal under section 135 which could possibly give rise to a question of law to the appellate jurisdiction of this Court. By making a specific reference to section 135 the Legislature has clearly restricted the scope of appeal or reference only to the questions of law which arise out of that order and none else. As noted earlier the Tribunal is competent to rectify its order under section 156 in exercise of that jurisdiction. However, it is only an order recorded on a successful application for rectification which can be read to be a part of the original order and covered by the provisions of section 135 if it goes to change the same to the prejudice of either the assessee or the Revenue. If an order on the application under section 156 simply refuses to rectify the original order, as observed earlier, it stands alone and remains a different order independent of the one originally recorded under section 135 of the Ordinance. Even where the Tribunal acts suo motu and rectifies the original order but such rectification does not change the order under section 135 to the prejudice of any of the parties, again such an order stands on its own and does not enter into the original order to give rise to a question of law to be considered by this Court. The order of rectification can be read as part of the rectified order and, therefore, subject to appellate or reference jurisdiction of this Court only if the change resulting therefrom disturbs the existing situation of liability of the assessee or the entitlement of the Revenue."
3. Following the dictum laid down in above referred case, we decline to exercise our jurisdiction.
Reference Application is decided against the applicant department.
4. Office shall send a copy of this order under seal of the Court to the Appellate Tribunal Inland Revenue as per Section 133(5) of the Income Tax Ordinance, 2001.