NASIM SIKANDAR, J.- This order will dispose of I.T.As. 17/2000, 18/2000, 19/2000 and 20/2000.
2. These four appeals under section 136 (since omitted and substituted) of the Income Tax Ordinance, 1979 by a Private Limited Company engaged in running a Hotel under the name and style of M/s. Holiday Inn, Multan are directed against a consolidated order recorded by the Lahore Bench of the Income Tax Appellate Tribunal on 7.6.2000, for the assessment years 1994-95, 1996-97 and 1998-99. Following questions of law are stated to have arisen of of the said order of the Tribunal:--
(i) Whether the assessing officer may presume, on detection of four payments in the sum of Rs.
24,150/- in a financial year to a single recipient, that the remaining payments must also be in excess of Rs. 25,000/- and declare the assessee as assessee in default under Section 52 of the Income Tax Ordinance, 1979 (hereinafter to be referred as the Ordinance)?
(ii) Whether the failure to deduct advance income tax/withholding tax under section 50(4) of the Ordinance is of any consequence in the circumstances wherein the recipient of the amount pays tax on amounts so received and his assessments are final?
(iii) Whether the deducting authority is merely an agent acting on behalf of the Department to deduct tax under the Ordinance?
(iv) Whether the provisions of section 50(4) warrant making of estimates of guesswork with regard to supply made?
(v) Whether the assessing officer may treat the assessee as assessee in default merely on a presumption of fact?
(vi) Whether there is any distinction between "on the spot purchases" from the open market and "supply" within the meaning of the Ordinance?
(vii) Whether under the Ordinance any person buying materials from the open market is under an obligation to deduct tax under Section 50(4)?
(viii) Whether the assessing officer may initiate proceedings under Section 52 of the Ordinance in respect of material purchased for construction which on the part of the other parties was not supply and thus did not attract the provisions of Section 50(4) of the Ordinance?
(ix) Whether the assessing officer may pick the figures from the schedule of fixed assets and whether assets purchased in one year could be capitalized in the subsequent years and hold the taxpayer as assessee in default without substantiating the same from the record?
(x) Whether the assessing officer may initiate proceedings under sections 52 and 86 of the Ordinance merely on the change of opinion after finalization of accounts and having passed the assessm ent orders?
(xi) Whether the assessing officer may impose additional tax in the circumstances wherein the advance tax deducted by the Income Tax Department is more than the tax liability under Section 52 of the Ordinance thereby leaving the refundable balance?
(xii) Whether notice issued under section 85 of the Ordinance is a legal notice for demand under Section 52 of the Ordinance?
3. The facts in brief are that for the aforesaid assessment year, the assessing officer treated the Company as an assessee in default on account of its failure to deduct tax under Section 50(4) in respect of payments made for purchases, supplies and services rendered to it. Also the assessee was found liable to additional tax under Section 86 of the Ordinance. On appeal the assessee partly succeeded wherein it was held that only a sum of Rs. 5,56,206/- as withholding tax was leviable under Section 52 for default in complying with the provisions of Section 50(4) of the Ordinance. Rest of the sums assessed under Section 52 as also the additional tax under Section 86 were found unjustified and therefore directed to be deleted.
4. The Department successfully assailed the partial relief allowed to the assessee. By way of the impugned order, a Division Bench of the Tribunal concluded that the particulars of the parties to whom payments in excess of the stipulated amounts were made were deliberately with-held by the assessee; that the assessing officer and undertaken the required care in excusing payments which fell below the stipulated limit of Rs. 25,000/- that exemption certified was produced in respect of only one party which related to the assessment year 1998-99 and that no documentary evidence was produced to establish that assessments in respect of the payees had already been completed and therefore the assessee could not be held to be as assessee in default under section 52 of the Ordinance.
5. After hearing the learned counsel for the parties, we are of the view that the findings recorded by the Tribunal are of factual nature only, In fact the only complaint of the assessee against the impugned order is that it reversed the findings of fact earlier recorded by the C.I.T. (Appeals) without support from the material on record. Even if that be so, it is an established preposition that this Court takes the conclusions of fact as found by the Tribunal and not by any forum below. The aforesaid finding of fact whereby the original assessment order was maintained cannot be said to be without any material on record. Earlier the assessing officer had identified each and every assessee as also that payments doled of to it during the assessments years. Partial reveals of these findings by C.I.T, was up-set by the Tribunal by recording another finding of fact. Therefore, in the given situation, the impugned order does not give rise to any question of law to be answered by this Court. The controversy involved in the case if in the given facts, the assessee made payments in excess of the stipulated amount giving rise to a liability towards the Revenue under Section 50 (4) of the Income Tax Ordinance must conclude with the order of the Tribunal.
6. It is by now well-settled that only a question of law arising of of the order of the Tribunal can be a subject- matter of reference before this Court. Also in a recent judgment re: tram Ghee Mills Ltd. V.
Income Tax Appellate Tribunal (1998 P.T.D. 3835) this Court has concluded that section 136 of the Income Tax Ordinance, 1979 providing for an appeal to this Court against the order of the Tribunal has not materially changed the exercise of advisory jurisdiction as available under the substituted provisions of section 136 providing for a reference to this Court. A question of law can be said to have been arisen of of an order of the Tribunal only if the issue was raised and it was ruled upon by the Tribunal, In the present case, however, we find that none of the issues now being raised by way of these questions was ever raised before the Tribunal, In absence of any finding recorded thereupon by the Tribunal no authoritative pronouncement with regard to the stated questions of law can possibly be made.