COMMISSIONER INLAND REVENUE Versus Mst. FARRAH NAZ Agha Muhammad Akmal Khan , Inayat ur Rehman
ORDER
Learned counsel for the applicant states that specific ground/question of law was raised before the Appellate Tribunal that "the learned CIR (Appeals) was not justified to annual the amendment order by entertaining the documents which were not produced before the assessing officer during the course of assessment proceedings", which was not addressed, therefore the impugned order is not sustainable. The applicant has also raised the same question before this Court for seeking its opinion on the same through Reference filed under Section 133 of the Income Tax Ordinance, 2001.
2. On the other hand the learned counsel for the respondent has defended the impugned order by stating that the afore-said question of law was not determined by the Appellate Tribunal so the same does not arise from the impugned order, hence the same cannot be brought before this Court for determination in its advisory jurisdiction.
3. We have perused the record of the case and also the impugned order passed by the Appellate Tribunal where in the afore-referred question has been taken specific note of but the same has neither been answered nor has any finding on the same been rendered. Even the learned counsel for the respondent has not been able to show from the record that the said question was addressed through a speaking and reasoned order. For determining whether such question can be treated as a question of law arising out of the order of the Appellate Tribunal for being amenable to the advisory jurisdiction of this court reference may be made to Judgment of the Honourable Supreme Court reported as Messrs F.M.Y. Industries Ltd. v. Deputy Commissioner Income Tax and another (2014 SCMR 907), wherein it has been held that it is now settled law that only questions of law and not the questions of fact arising out of order of the Tribunal can be raised before the High Court, which include (i) questions of law argued and answered by the Tribunal; (ii) questions of law were argued but finding on same have not been given by the Tribunal; and (iii) questions which were never argued but had been adjudicated by the Tribunal. Moreover, it has been clarified that the question of law neither raised nor adjudicated upon by the Tribunal cannot be raised in the reference for opinion of this court.
4. By placing reliance on the principles laid down by the afore-said judgment of the Supreme Court it is observed that as the question mentioned above was raised and taken note of by the Appellate Tribunal, the same is to be considered as a question arising out of the impugned order passed by the Tribunal even if no finding had been given on the same by the Tribunal, consequently, while disagreeing with the contention of the learned counsel for the respondent we hold that the proposed question of law can be raised for opinion of this court in its advisory jurisdiction.
5. The next question is whether the afore-said question can be answered at this stage, suffice it to say that where a question of law arising out of order of the Appellate Tribunal is permissible to be raised, the same can also be answered provided it is based on undisputed or settled facts or its answer is not dependent upon determination of facts. In the present case in order to answer the proposed question, addressing of some basic and incidental questions of fact is necessary, such as whether notice was properly served upon the respondent by the adjudicating officer before passing the order, whether proper opportunity was provided to her to produce documents before the assessing officer, whether there existed any occasion or justification for producing documents for the first time before the CIR(A), etc., which questions have not been determined at any stage prior to filing of this reference and cannot be determined at this stage by this court being beyond its jurisdiction, however, the said questions could be determined by the forums below by referring to the record of the case, as only the said forums were competent to decide questions of fact arising in the matter and thereafter the question of law which is dependent upon such adjudication can be answered.
6. In view of what has been stated above, we deem it appropriate to set aside the impugned order dated 11.06.2019 passed by the Appellate Tribunal and remand the matter to the learned Appellate Tribunal for the purpose of re-hearing and deciding the matter afresh after taking into consideration the grounds raised by the applicant department in appeal and also the stance of the respondent. The parties are directed to appear before the Registrar of the Tribunal concerned on 20.10.2020, who shall place the matter before the proper forum for further proceedings, where after, the matter shall be concluded expeditiously, preferably within a period of two months.
7. Disposed of accordingly.
8. Office shall send a copy of this order under seal of the Court to learned Appellate Tribunal as per section 133(5) of the Ordinance.
KMZ/C-6/L Order accordingly.