' NASIM SIKANDAR, J.---This is an application under section 136(2) of the late Income Tax Ordinance, 1979 by the Revenue through Commissioner of Income Tax, Companies Zone-I, Lahore; It is claimed that the impugned order of the Tribunal, dated 30-9-2000 has given rise to the following question of law.
"Whether on the basis of facts and circumstances of the case the learned ITAT is justified to hold that importer/supplier can be subjected to tax at the import stage only?"
2. The assessee-respondent is a private limited company and derived income from manufacturing of ghee and cooking oil. For the assessment year 1995-96 an assessment in its respect under section 62 was completed on 30-6-1998 at an income of Rs,2,54,675. A sum of Rs,5,22,875 was also charged under section 80-C on the total imports made by the petitioner of RBD palm oil during this period. Subsequently I.A.C. Range-Hl, Companies Zone-I, Lahore on 6-10-1999 found the said assessm ent order to be erroneous and, therefore, proceeded to exercise powers vested in him under section 66-A. Accordingly the original assessment order was modified on the ground that while completing the assessm ent the Assessing Officer charged tax under section 80C only on deemed ,income of imports while supplies of RBD palm oil at Rs,50,58,516 to two different ghee mills was not charged under section 80-C at the rate of 2.5%. These supplies were accordingly brought to tax at the aforesaid rate.
3. On appeal a Division Bench of the Tribunal disapproved the approach adopted by I.A.C. On the ground that supplies of RBD palm oil by the petitioner could not be subjected to tax under section 80-C as the goods in question had, already suffered tax at import stage under section 50(5) of the lat Income Tax Ordinance, 1979.
4. Thereafter the Revenue approached the learned Tribunal for a reference of the aforesaid question to this Court which was declined on 1-3-2001. Hence this petition under section 136(2) of the late Ordinance.
5. This reference was admitted for hearing on 2-9-2002 to answer the aforesaid question. However, after hearing the learned counsel for the Revenue and on going through the revised assessment order as well as the order of the Tribunal we have reached a conclusion that an answer to the aforesaid question is not possible for a number of reasons. Firstly, it has been framed in too general terms. Secondly, the real facts of the case were not properly considered, by the Revenue authorities. In the original assessm ent order, dated 30-6-1998 the Assessing Officer found that the company imported 991 M.T. Of RBD palm oil which was sold in open market on which profit of Rs,9,26,137 was earned. That C profit was shown under the head 'other income'. However, the Assessing Officer opined that since the oil sold by the assessee attracted by the provisions of section 80-C, the imports made by the company were brought to tax separately as a commercial importer.
6. Learned I.A.C. While revising the original order held the view that the Assessing Officer charged tax under section 80-C only on deemed income of imports whereas on supplies of part of RBD palm oil earlier imported no tax was charged under section 80-C at the prescribed rate of 2.5%. The issue if the petitioner was being treated as a commercial importer was not touched by the learned I.A.C. Before the Tribunal it was pleaded by the Revenue that this was not the case of a commercial importer as such. Therefore, the supply of imported palm oil by the appellant must attract tax under section 80-C. In the view of the Tribunal however, the supply of palm oil having already suffered tax at import stage under section 50(5) the tax will be deemed to be final discharge of liability on presumptive basis. Therefore, the supply of such goods was held not subject to tax under section 80-C. In other words the Tribunal did not agree with the two set of facts and the law as found by the Assessing Officer in the assessment order, dated 30-6-1998 and the revising authority's order under section 66-A, dated 6-10-1999.
7. The frame of question as noted earlier, is too general in nature and it does not make reference to the particular provisions of law under which the charge was made by the Revenue and disapproved by the learned Tribunal. An answer to the question is therefore, likely to be misinterpreted.
8. Answer declined.
Answer declined.