I.T.A. NO.587/KB OF 1997-98, DECIDED ON 13TH MARCH 1999. Versus I.T.A. NO.587/KB OF 1997-98, DECIDED ON 13TH MARCH 1999.
ORDER
SHAHID JAMAL (ACCOUNTANT MEMBER).--- The above appeal has been filed against learned A.A.C's. refusal to pass rectification order on appellant's application dated 23-12-1995 and communication of such refusal by letter dated 29-4-1998.
2. Mr. Abdul Tahir Ansari, A.R. appearing for the appellant, giving us the back-ground of the case submitted that in this case original order under section 62 of the Income Tax Ordinance passed on 10-10-1991 against which assessee had filed appeal before learned CIT(A), who vide his order dated 5-2-1992 had set aside the assessment with direction that Inspector's report dated 10-10-1991 regarding investigation in. Property No.B-262 be considered and since the admitted position as per report was that the investment on the construction of the property related to two Financial Year corresponding to assessment years 1991-92 and 1992-93, the relevant addition under section 13(1)(aa) should also be considered for two assessment years. Further, appellant's proved investment of Rs. 25,000 may also be considered while finalize computing the addition under section 13(1)(aa). The assessee not being satisfied with learned CIT(A) setting aside of the matter further want in appeal before the Tribunal which maintained the learned CIT(A)'s order vide its own order, dated 13-8-1995. Meanwhile, however, even before the disposal of appeal by the Tribunal, the set aside assessment was taken up by the concerned Assessing Officer and the same was finalized under section 63/132 on 30-6-1994, maintaining addition under section 13(1)(aa) at Rs.2,00,000 and reducing estimate of business income from Rs.50,000 to Rs.45,000. An appeal, against this order was filed before the A.A.C. and objection was taken that addition under section 13(1)(aa) was made without proper service of notice under section 13. The A.A.C. did not accept the arguments of service of notice a, well as the previous observation of learned CIT(A) that said investment was covered in two years and not one year and confirmed the order passed under section 63/132 determining income and Rs.2,45,000. Against this order of the A.A.C., Mr. Abdul Tahir Ansari submitted, his client filed an application for rectification on 23-12-1995 submitted that learned CIT(A)'s observations, reported on the order sheet of the Appellant proceedings, were neither referred to nor incorporated in the Appellate order and, hence this being a mistake apparent from the record, the Appellate Order needed to be rectified and moditted. This was not done and instead the A.A.C. replied the d rectification should be deemed to have been disposed off in the following words:---
"As regard the application under section 156, dated 23-12-1995 no action seems to have been taken as the matter was considered to have been disposed off and did not involve to any points of rectification:---"
3. It is against this finding of learned A.A.C. that appellant has come up in appeal before the Income Appellate Tribunal.
4. Mr. Imtiaz Ahmed Barakzai, learned D. R. supported the impugned letter for the A.A.C. on the ground that since no apparent mistake was there do the surface of the Appellate Order, there was no need to pass a judicial order.
5. We have considered the issue before us and we are inclined to agree that learned A.A.C. should have passed an order, if in his opinion, the observations recorded by the previous learned CIT(A), were not relevant and to that extent his own order did not suffer from any infirmity. Therefore, we would in the best interest of the revenue as well as justice set aside the orders of the two officers below with the direction that the matter may be reconsidered in the light of directions given by learned CIT(A) and those observations be reproduced in the assessment order and a conscious decision be taken on merits of the case.
C.M.A./60/Tax-K(Trib.) Order set aside.