2013 PTD 1656
ORDER
NAZIR AHMAD (JUDICIAL MEMBER).--- Through the titled miscellaneous application, the department/applicant seeks rectification of ATIR order dated 7-11-2009 recorded in its appeal bearing I.T.A. No.415/LB/2008.
2. Learned DR appearing on behalf of the department/applicant has vehemently argued that the ATIR order supra due to suffering certain infirmities needs rectification. She has elaborated her view point by maintaining that addition under section 13(1)(aa) was deleted by this Tribunal on the ground that the same was made without obtaining approval of the IAC provided under section 30 of the Income Tax Ordinance, 1979 (hereinafter called the repealed Ordinance). She has stressed that since the order under section 66A of the repealed Ordinance was passed by the Additional Commissioner Income Tax himself, therefore, approval of the higher authority was not required. On this point, she seeks rectification of the ATIR order supra.
3. On the other hand, the learned AR appearing on behalf of the Revenue prays for rejection of the instant miscellaneous application by arguing that the mistake pinpointed by learned AR is not apparent from record, which could be seen without going into details. He has further added that para-5 of the ATIR order supra contains exhaustive discussion on the objection raised by learned DR at this stage.
4. We have heard the arguments advanced by rival parties and also carefully gone through the relevant record available on file. Before giving our opinion on the issue under consideration, we deem it appropriate to have a look on paragraph 5 of ATIR order dated 7-11-2009, which reads as under:--
"5. We have heard the arguments advanced by rival parties and also carefully gone through the relevant record available on file. The sole point for adjudication before us is that as to whether learned Additional Commissioner of Income Tax having equal rank of IAC, is also bound to obtain such approval from his superior authority before making addition under section 13(1)(aa) or not. We find force in the arguments advanced by learned AR being supported by plausible reasons. According to law, before making addition under section 13(1)(aa) it is obligatory upon the assessing officer to obtain prior approval of the IAC. The relevant portion of section 13 which is a proviso reads as under:--
"Provided further that in cases referred to in clauses (aa) to be such income shall not be chargeable to tax unless approval of the Inspecting Additional Commissioner has been obtained."
----The wording of the proviso is very clear and no addition under section 13(1)(AA) can be made without approval of the IAC. In the instant case the Additional Commissioner of Income Tax has invoked the provisions of section 66A, in the capacity of IAC as per power assigned to him in the said section. We are of the considered view that while making addition in the section 13(1)(AA) as assessing authority the Additional Commissioner was also bound to obtain approval of his higher authority as envisaged in section 13. The non-obtaining of approval from his higher authority which is obviously the concerned Commissioner in whose jurisdiction he is performing his duties rendered the addition under section 13(1)(AA) as illegal. The view point taken by us already stands endorsed by the ratio settled in a reported judgment cited as 1988 PTD 612. The addition under section 13(1)(aa) has been made by learned Additional Commissioner of Income Tax without obtaining approval from any Authority. It is an admitted fact that IAC is superior authority of assessing officer and Commissioner of Income Tax is superior authority of Additional Commissioner of Income Tax in the late Income Tax Ordinance, 1979. Since, the matter of making addition under section 13(1)(aa) has been made conditional with prior approval of the Inspecting Additional Commissioner therefore in the instant case while making the impugned addition it was obligatory upon the learned Additional Commissioner of Income Tax functioning as Assessing Authority to obtain prior approval of his superior authority i.e., Commissioner of Income Tax but he failed to do so and while amending the original assessment framed under section 62 made addition under section 13(1)(aa) without fulfilling mandatory requirement of Law, which cannot be endorsed by us at all. In view of foregoing legal flaws, the impugned order passed under section 66A cannot be endorsed by us being illegal and the same is vacated. The addition made under section 13(1)(aa) stands deleted. Consequently, the assessee's appeal is accepted."
5. The bare perusal of the above finding clearly transpires that the query raised by the learned DR at this belated stage already stands answered by this Tribunal through above mentioned highlighted and underlined portion of para 5 of ATIR order supra. But astonishingly enough, now as per instant Miscellaneous Application, the department/ applicant is seeking rectification of the ATIR order 7-11-2009 on the plea, which already stands answered by this Tribunal. Learned DR has failed to pinpoint any mistake apparent from record, which could be rectified. Furthermore, the scope of rectification is very limited in the light of ratio settled in reported judgments 2008 PTD 253 and 2007 PTD 967 according to which only those mistakes can be rectified, which are detectable by mere reading of the order without any investigation of new evidence supported by new set of arguments. From the foregoing discussion, as no glaring mistake apparent from the surface of ATIR order supra, therefore, the same does not need rectification and the request made by the department/applicant as per titled miscellaneous application merits rejection on this score. We order accordingly.
C.M.A./93/Tax(Trib.) Application rejected.