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Civil Reference No. 632 of 1972, decided on 8th August, 1984.

---S. 66(1)--Reference--Assessee filing appeal before Appellate Assistant Commissioner instead of Income-tax Appellate Tribunal--Competency of appeal not challenged by Department--Appeal contested on merits and decided--Department impugned order before Appellate Tribunal--Ground of competency not taken in memo. of appeal but raised as additional ground during arguments--Department's appeal allowed holding that Assessee's appeal was not competent--On Reference by Assessee, High Court noticed lapse on part of Department in not raising objection on competency of appeal--Case remanded to Income-tax Appellate Tribunal- Assessee's original appeal to be deemed as pending before it and decided afresh.

Iqbal Kazi for Applicant.

Waheed Farooqui for Respondent.

Date of hearing: 8th August, 1984.

--The present Income-tax Reference which pertains to the assessment year 1966-67 raises the following questions of law:-

"Whether in the facts and circumstances of the case the assessee was justified in law in filing appeal before the Appellate Assistant Commissioner for the assessment year 1966-67 when -income assessed exceeded Rs. 2 lacs and whether the Appellate Assistant Commissioner had jurisdiction to hear and decide the appeal.

Whether the Honourable Tribunal was right in vacating the order of the Appellate Assistant Commissioner.

Whether the admission of additional ground, raised at the time of hearing by the Departmental Representative which was not raised before the Appellate Assistant Commissioners was justified on facts and in law and the Departmental Representative competent and authorised to raise additional ground of appeal."

2. It may be observed that the applicant assessee had disclosed a total income of Rs. 3,73,124 in the above assessment year. The assessee was assessed by the Income-tax Officer. It deems that the assessee had filed an appeal against the above assessment order before the Appellate Assistant Commissioner "C" Range, Karachi, instead of filing of the same before the learned Income--tax Appellate Tribunal, which was disposed of by the former by his order dated 6-1-1968. It may also be observed that the above appeal was contested by the respondent department on merits and no objection was raised to the effect that the appeal was not competent before the Appellate Assistant Commissioner. It seems that the respondent department filed an appeal against the above appellate order before the Income-tax Appellate Tribunal. (Karachi Bench) (I . T . A . No. 2029/67-68) , which was allowed by the learned Income-tax Appellate Tribunal by its order dated 1-7-1970 on the ground that the appeal before the Appellate Assistant Commissioner was not competent, though this ground was not raised in the memo of appeal before it, but it was raised as an additional ground during the argument.

3. In our view, there was lapse on the part of the respondent department as well in the present case as it should have raised an objection before the Appellate Assistant Commissioner to the effect that the appeal was riot competent before him. Instead -of raising any such objection, the department defended the appeal on merits. Furthermore, the department filed aft appeal against the aforesaid order dated 6-1-1968 passed by the Appellate Assistant Commissioner before the learned Income-tax Appellate Tribunal on the assumption that it had jurisdiction in the matter as no ground in the memo. of appeal as to the jurisdiction was raised as observed hereinabove.

4. Without going into the merits, we with the consent of the learned counsel for the parties remand the case to the learned Income-tax Appellate Tribunal for deciding the appeal, which was filed by the applicant assessee before tile Appellate Assistant Commissioner afresh. It will be deemed that the above appeal is pending before the learned Income-tax Appellate Tribunal.

The above reference stands disposed of in the above terms with no order as to costs.

M. I . Order accordingly.

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