Amir Sajjad vs Cir etc.

Stereo.HCJDA 38.

JUDGMENT SHEET.

LAHORE HIGH COURT,

RAWALPINDI BENCH RAWALPINDI.

JUDICIAL DEPARTMENT

I.T.R. NO.40 of 2025

Mr. AMIR SAJJAD versus

COMMISSIONER INLAND REVENUE, Jhelum Zone and others

JUDGMENT

Date of hearing: 14.05.2025.

Applicant by: Zahid Shafique, Advocate.

Respondents-department Malik Itaat Hussain Awan, Advocate by: alongwith Yousaf Khan S.O. I.R. Legal (HQ) RTO, Rawalpindi.

Mirza Viqas Rauf, J. This reference application in terms of Section 133 of the Income Tax Ordinance, 2001 (hereinafter referred to as “Ordinance”) originates from order dated 26th February, 2025, whereby the Appellate Tribunal, Inland Revenue, Pakistan, Division Bench-I, Islamabad (hereinafter referred to as “Tribunal”) proceeded to remand the matter to the Assessing Officer for de novo proceedings on the appeal of the applicant.

2.Facts germane for adjudication of this reference application are that the applicant presented income tax return for the year 2018, declaring foreign income as exempted. The respondent-department, however, initiated proceedings on the basis of information that the applicant had purchased properties worth Rs.11,340,000/-, which have not been declared in the wealth statement by him. The proceedings culminated into passing of an order whereby amended income was determined as Rs.17,086,614/- by adding value of purchased properties and foreign remittances and tax liability of Rs.5,199,814/- was created. The applicant preferred an appeal

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before the Commissioner (Appeal), Inland Revenue, who proceeded and affirmed the order of the Assessing Officer. The applicant then preferred an appeal before the Tribunal, which has been decided through the impugned order. On the basis of questions, chalked out in this reference application, notice was issued to the respondent-department.

3.Before us, while questioning vires of the impugned order, learned counsel for the applicant submitted that on the previous occasion matter came up before this Court in I.T.R.No.01 of 2024 and it was decided by way of order dated 05th November, 2024 and matter was since remitted to the Tribunal with certain observations so Tribunal was precluded to remand the matter instead of deciding it in the light thereof. Learned counsel emphasized that the impugned order, in the circumstances, is not tenable. He also placed reliance on the case of CHAIRMAN, WAPDA, LAHORE and another versus GULBAT KHAN (1996 SCMR 230).

4.Conversely, learned counsel for the respondent-department submitted that the Tribunal was vested with the jurisdiction to remand the matter and no illegality was committed by the Tribunal by passing the impugned order. He, however, contended that since the Tribunal has only remanded the matter to the Assessing Officer so this reference application is not maintainable in the light of principles laid down in the case of COMMISSIONER INLAND REVENUE, MULTAN versus Messrs BANK

AL-HABIB LTD (2016 PTD 2548).

5.We have heard learned counsel for the parties and perused the record.

6.As we have already pinpointed the necessary facts, hereinabove, so we would avoid from rigmarole of facts and would advert to the core issue, involved in this reference application. Admittedly, on the previous occasion, when the appeal of the applicant was dismissed by the Tribunal by way of order dated 09th October, 2023, the matter came up before this Court through I.T.R.No.01 of 2024 and it was decided on 05 th November, 2024 with the following observations:-

7.This obviously neither satisfies the mandate of law nor exhibits the application of independent judicial mind and we are

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convinced that the impugned Order passed by ATIR is not sustainable in the eyes of law. Consequently, we set aside the same and remit the matter to ATIR for reconsideration and recording the findings after potent evaluation of documentary proof especially identifying the fact whether notice under section 111 of the Ordinance was issued prior to Show Cause Notice under section 122(9) of the Ordinance and in case the answer to question is in negative, the ATIR is supposed to record its findings in the light of Judgment rendered by Hon'ble Supreme Court of Pakistan in the case of Millat Tractors Limited supra.

7.There is no cavil what while remitting the matter to the Tribunal, certain observations were recorded by the Court as guiding factors for the Tribunal while deciding the appeal but we are constrained to observe that this would not amount to abdicate or abridge the powers of the Tribunal, bestowed under the law. Needless to mention that remittance or remand of the matter would not amount to hedge or circumscribe the powers of the Tribunal otherwise, vested by the mandate of law.

8.Section 132 of the Ordinance deals with decision of appeals by the Tribunal and Sub-Section (4) ordains as under:-

(4)Where the appeal relates to an assessment order, the Appellate Tribunal may, without prejudice to the powers specified in sub-section (3), make an order to-

(a)affirm, modify or annul the assessment order;

(b)remand the case to the Commissioner for making such enquiry or taking such action as the Tribunal may direct; or

(c)make such order as the Appellate Tribunal may deem fit. [Underlining is supplied for emphasis]

From the bare perusal of the above referred provision of law it is manifestly clear that the Tribunal is vested with the powers to remand the case to the Commissioner for making such enquiry or taking such action as the Tribunal may direct or make such order as it deems fit.

9.We have noticed that on the previous occasion, while remitting the matter to the Tribunal, it was observed that the Tribunal should

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reconsider the matter and record findings after potent evaluation of documentary proof, especially identifying the fact, whether notice under Section 111 of the Ordinance was issued prior to show cause notice under Section 122(9) of the Ordinance and in case the answer to the question is in negative, the Tribunal is supposed to record its own findings in the light of judgment rendered by Supreme Court of Pakistan in COMMISSIONER INLAND Revenue, LAHORE versus Messrs MILLAT TRACTORS LIMITED, LAHORE and others (2024 PTD 483), which by itself clearly implies that the matter was requiring serious consideration. We are thus of the considered view that the Tribunal has committed no illegality, while remanding the matter through the impugned order as it was vested with such powers under Section 132(4)(b) of the Ordinance.

10.So far judgment in the case of CHAIRMAN, WAPDA, LAHORE (supra), heavily relied up by learned counsel for the applicant is concerned, that rests upon entirely different facts and is not applicable to the case at hand. In somewhat similar circumstances in the case of Messrs BANK AL-HABIB LTD (ibid) a Division Bench of this Court held as under:-

10.The provision of section 133 of the Ordinance makes specific reference to order of learned Tribunal under section 132 of the Ordinance. By making specific reference, the legislature has restricted the scope of reference before this Court only to question of law which arises out of order under section 132 of the Ordinance and none-else. The reference jurisdiction of this Court is special advisory jurisdiction and different from its appellate and revisional jurisdiction under Civil Procedure Code or other similar laws. The essence of advisory jurisdiction under section 133 of the Ordinance is restricted to order by appellate Tribunal under section 132 of the Ordinance. The opinion of the Full Bench of the Tribunal will finally culminate into order under section 132 of the Ordinance, only when the said opinion will be applied and incorporated in individual appeals relating to different assessment and tax years and thereafter, final order will be passed on said appeals by learned Tribunal to affirm,

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modify, or annual the assessment orders or remand the case under section 132 of the Ordinance.

11.This interpretation of sections 132 and 133 of the Ordinance is also in consonance with settled law that reference is not maintainable against remand order of the Tribunal because there is no conclusive finding of the Tribunal on record. Reliance is placed on Haji Muhammad Yousaf v. Commissioner of Income Tax and Wealth Tax Companies Zone, Faisalabad (2006 PTD 72), M/s E.M. Oil Mills and Industries Ltd. v. Commissioner of Income Tax (2011 PTD 2708), The Commissioner of Income Tax, Central Zone ‘B’, Karachi v. Messrs Electronic Industries Ltd. (1988 PTD 111), Islamuddin and 3 others v. The Income Tax Officer and others (2000 PTD 306), M/s. Bostan International v. Commissioner of Income Tax, Zone-C, Karachi (2010 PTD 1275), Commissioner of Income Tax and Wealth Tax, Sialkot Zone v. Messrs Maqsood Ahmad Gill (2007 PTD 1757), Commissioner of Income Tax v. Bihar Alloy Steels Ltd. (1995 PTD 1189).

Reference to the above effect can also be made to the case of Messrs E.M. OILS MILLS AND INDUSTRIES LTD. through Director versus

COMMISSIONER OF INCOME TAX, AUDIT DIVISION II, COMPANIES

III, KARACHI (2011 PTD 2708).

11.The nutshell of above discussion is that this reference application is bereft of any merits and not canvassing any question of law, resultantly, it is dismissed with no order as to costs.

12.Office shall send a copy of this order under seal of the Court to the concerned quarters as per Section 133 (8) of the Ordinance.

(RASAAL HASAN SYED) (MIRZA VIQAS RAUF)

JUDGE JUDGE

Sajjad

APPROVED FOR REPORTING

JUDGE JUDGE