M.A. (Revised Ground) No.282/KB and I.T.A. No.184/KB of 2005, decided on 28th June, 2005. Versus M.A. (Revised Ground) No.282/KB and I.T.A. No.184/KB of 2005, decided on 28th June, 2005.

ORDER

By this order, we would like to decide a miscellaneous application moved by the assessee requesting -therein to allow certain additional grounds of appeal in addition to grounds taken in I.T.A. No.184/KB of 2005 by the Department.

2. Perusal of the record shows that the Department vide grounds of appeal in I.T.A. No. 184/KB of 2005 challenged the order, dated 11th November, 2004 passed by the learned CIT(A) pertaining to assessment year 1998-99 to the extent of G.P. rate applied at 10% on an addition made under section 13(1)(aa).

3. The learned counsel for the assessee argued that the learned CIT(A) has erred in law in failing to cancel the impugned order when it was already hit by section 66(1)(c) of the Income Tax Ordinance, 1979 and that the order confirming the addition under section 25(c) is contrary to a case record and evidence of payment of bank interest, he added that the legal issue of addition of Rs.2,16,36,974 made under section 13 is bad for want of approval, whereas ground No.6 of the appeal remained unattended, whereby the learned CIT(A) erred in failing to adjudicate the summarized ground No.6 of the consolidated appellate order.

4. It is unfortunate that very important issues are either not adjudicated or requiring further adjudication at the level of the Tribunal, have not been challenged by either parties. Since the assessee has not preferred an appeal, the learned A.R. has proposed amended grounds in Departmental appeal, as such the point for determination irrespective of the merits of the application, would be as to whether the assessee/ respondent can make a request to add, amend, alter or disregard any of the grounds of appeal, when the appeal is preferred by the Department.

5. We have heard the learned representative of the two parties. The present appeal bearing I.T.A. No. 184/KB of 2005 has been preferred by the Department, as such being the only custodian of the appeal, has exclusive, vested right to confine itself to any of the issue, whereas the assessee, through this application, in order to cover up its fault, has tried to adjudicate the issues decided against it without filing an appeal. The assessee being a Respondent has no case to ask for addition in grounds, of appeal, whatever may be fate of the issues, if not adjudicated or wrongly adjudicated, will not in any case entitle the assessee to indulge in the grounds of appeal preferred by the Department.

6. Consequently we find that the miscellaneous application moved by the assessee in the Departmental appeal to include the proposed grounds directly affecting the assessee is not maintainable, it would amount to allow the assessee to argue the grounds of appeal affecting relief in favour of the assessee on aggrieved issues not relevant to departmental appeal, without filing a separate appeal. We are also of the view that allowing additional grounds, in present circumstance, will tantamount to ask the Department to look after the assessee's interest in Departmental appeal, besides the right of appellant to withdraw the appeal will also be frustrated in such circumstances.

6. Rule 10 of the Income Tax Appellate Tribunal Rules, 1981, provides that every Memorandum of Appeal, shall set forth concisely and under distinct heads the specific grounds of appeal which shall be proved consecutively. Rule 14 of the said Rules, further provides that the appellant shall not except by leave of the Tribunal, urge or be heard in support of any grounds not set forth in the Memorandum of Appeal. There may not be second opinion that law does not provide any provision enabling the Respondent to invoke attention of the Tribunal for deciding issues not the subject-matter of appeal and for which no appeal has been preferred by the assessee, hence there remains no question to allow the Respondent to amend the grounds of appeal raised in the Departmental appeal.

7. The miscellaneous application accordingly stands rejected.

C.M.A./543/Tax (Trib.) ??????????????????????????????????????????????????????????????????????? Application rejected.