COMMISSIONER INLAND REVENUE Versus MUHAMMAD ZUBAIR ALAMGIR Muqtedir Akhtar Shabir and Mirza Shahryar Beg

ORDER

C.M. No. 1/2023

This application seeks restoration of titled reference application. Affidavit of learned counsel is attached herewith. For the reasons pleaded, this application is allowed. And main case is restored to its original number Office is directed to fix this case today.

Main case

2. This Reference application arises out of order dated 24.07.2012 of learned Appellate Tribunal Inland Revenue, Lahore ("Appellate Tribunal"), and following question of law is proposed for our opinion,

"Whether under the facts and circumstances of the case, the ATIR was justified to hold that the sale of properties was not in nature of trade merely on the ground that the, properties in question were received through inheritance whereas sections 75, 76 and 77 of the Income Tax Ordinance specifically provides for taxation of gain on sale of such - properties which have been received at no costs under inheritance?"

3. Matter pertains to Tax year 2005.

4. Report of service of notices is available. Despite submission of power of attorney none of the counsels for the taxpayer are present. We are not inclined to adjourn the proceedings, pending since 2012.

5. Learned counsel submits that Tribunal failed to consider the applicability and scope of various provisions of Income Tax Ordinance, 2001 in the context of the gains bagged through sale of properties. Learned counsel referred to paragraph 9 of the order to emphasize that Tribunal, in fact, abdicated its jurisdiction and allowed appeal simplicitor while referring to its earlier order without extending reasons to establish alleged similarity of facts / causes. For facility, operative part of paragraph 9 of the order is reproduced hereunder,

"We have heard the rival arguments and persuade the case record and are of the considered opinion that the ATIR has already decided the same issue of two member of AOP through a very well-reasoned and speaking order, therefore, we do not find any plausible reason to differ with the earlier decision in ITA No.374/LB/2012 dated 04.06.2012 therefore, we dismiss the departmental appeal .being devoid of merit."

[Emphasis supplied]

6. Order is devoid of plausible reasoning and patently ambiguous. No explanation is found to understand the meaning or rational of the expression "two members of AOP". Evidently, effect of various provisions of law, in the context of allegations was not dilated upon, let alone considered. Tribunal was required to consider the scope of various sections of the Ordinance. Fair and proper adjudication of matter in issue is missing, hence, we are constrained to allow this reference application, set aside the order of the Tribunal and remand the matter for decision afresh on the Appeal of the taxpayer.

7. Office shall send a copy of this order, under seal of the Court, to learned Appellate Tribunal.

MQ/C-2/L Reference allowed.