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M.A.(R) Nos.174/IB and 175/IB of 2008, decided on 13th December, 2008.

----Ss. 122 & 131---Amendment of assessment---Remand of case by Appellate Tribunal---Application for recall of remand orders---Taxpayer had sought recall of orders of Tribunal on the grounds that Tribunal had remanded the case to the Taxation Officer without giving any findings on the objections raised by authorized representative of the taxpayer with regard to legal lacunae in the assessment order---Objections which remained un-adjudicated were that the assessment order was passed without mentioning any specific provisions of S.122 of Income Tax Ordinance, 2001; that case-law relied upon in support of acceptance of receipts being subject to sales tax had not been considered, and that no finding had been given with regard to contention that the sales had been estimated without pointing out any defects in the books of accounts---Taxpayer"s contention regarding non-consideration of the objections raised in the original appeal were tenable---Tribunal was bound to give findings regarding the issues raised in appeal---Case should not be remanded as a matter of routine so as to allow the Taxation Officer to fill in legal lacunae or to improve its case---Impugned order was recalled, and appeals were restored to their original numbers for fixation as per roster, in circumstances. 1971 SCMR 681; 2005 PTD 2417 and 2003 PTD 1956 ref. Atif Waheed for Petitioner. Altaf Ahmad Khan for Respondent. Date of hearing: 4th December, 2008.

The petitioner seeks recall of Tribunals order in I.T.As. Nos. 258 and 259/IB/2008 dated 4-9-2008 for the reasons that the Tribunal had remanded the case back to the Taxation Officer without giving any finding on the objections raised by their authorized representative with regard to the legal lacunas in the assessment order, which constitutes mistake apparent on record. The objections which, allegedly, remained un-adjudicated are that: (i) the assessment order was passed without mentioning any specific provision of section 122; (ii) the case-law relied upon in support of acceptance of receipts being subject to Sales Tax, has not been considered; and, (iii) no finding has been given with regard to contention that the sales have been estimated without pointing out any defects in the books of accounts. 2. Arguing in support of his client"s contention, the learned counsel has asserted that the Tribunal was bound to follow the decisions of the higher judiciary as well as its own pronouncements, that non consideration of the grounds of appeal/ legal objections constitutes mistake apparent from the record. In this regard he has relied upon the case-law reported as (i) 1971 SCMR 681; (ii) 2005 PTD 2417 and (iii) 2003 PTD 1956, in which it has been opined that the Tribunal is bound to give its findings regarding the issues raised in the appeal and the case should not be remanded as a matter of routine so as to allow the Taxation Officer to fill in legal lacuna or to improve its case. The learned DR, on the other hand, opposed the miscellaneous applications, for there was no mistake apparent from the Tribunal"s order. 3. Heard, record perused. It is noticed that although above mentioned contentions of the taxpayer"s counsel find place in the impugned order, yet these were not adjudicated upon in the operative part of the decision, which reads as under:-- "I have considered arguments of both the sides and I am inclined to agree with learned DR that CIT (A) has not appreciated the facts of this case as complete record and account books were not produced for examination of the taxation officer. The assessee might have maintained complete records but the same were not produced for examination during audit proceedings. In these circumstances, the rejection of the declared sales was justified. However, the taxation officer has not properly supported the sales assessed in the impugned assessment order. In my opinion, this case needs reconsideration/re-examination by the taxation officer and for this purpose, the assessment is remanded back to assessing officer with the directions that an adequate opportunity should be provided to the assessee to produce account books and relevant record and final action should be taken in the light of position emerging thereafter." Perusal of the above excerpt from the impugned order would show that the taxpayer"s contention regarding non-consideration of the objections raised in the original appeal is tenable. We, therefore deem it necessary to recall the contentious order, and restore the appeals to their original numbers, for fixation as per roster. 4. Resultantly, both the miscellaneous applications succeed. CMA/156/Tax(Trib.) Applications accepted.

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