M/S Techno Gas Services; Tulsa Road, Rawalpindi. | Appellant | |
Vs | ||
Commissioner Inland Revenue, RTO, Rawalpindi. | Respondent | |
Appellant by | Hafiz Muhammad Idris, Adv. | |
Respondent by | Mr. Zaheer Qureshi, DR | |
Date of hearing | 16.09.2019 | |
Date of order | 16.09.2019 |
ORDER\
O R D E R
“It
is, therefore, humbly prayed that the above-cited appeal may kindly be fixed
for hearing as early as possible to meet the ends of justice”.
The facts of the case and grounds of applications
are similar and identical therefore, these applications are being decided
through this order.
2. The
facts can be stated shortly. The amendments under section 122(1) read section
122(5) of the Income Tax Ordinance, 2001 (“the Ordinance”) were made for the
tax years 2004 and 2005 on the basis of OGRA Formula considering the same as
definite information. These orders were challenged by the appellant by invoking
the provisions of section 127 of the Ordinance before the learned Commissioner
Inland Revenue (Appeals). The learned CIR(A) dismissed the appeals of the
appellant. The appellant then chose to prefer the appeals under section 131 of
the Ordinance before this Tribunal. The appeals of the appellant were heard and
disposed of on 18.05.2012 in favour of the appellant with the following
observations: -
“3. The learned AR states that amendment u/s
122(5) on the basis of OGRA Formula considering the same as definite
information has not been approved by the Tribunal in ITA No.357 &
358/IB/2011 in the case of M/s Khan CNG, Rawalpindi wherein it has been held
that OGRA Formula does not constitute definite information: -
“The term “definite
information” has not been defines in the Income Tax Ordinance, 1979 it will be
assumed that the Legislature intended to give ordinary dictionary meanings to
it, whenever it is required to be dealt with. The word “information” when it is
qualified with the word “definite” would mean that the said information in all
probabilities, is correct in all respects and there is no likelihood of its
being wrong or untrue and there is no necessity to conduct a probe to be
satisfied about its exactness/correctness and there is no chance of its being
untrue”
4. Needless to mention as in case of M/s
Khan CNG, Rawalpindi learned Judicial Member and learned Accountant Member
differed in their view and case was marked for opinion of third Member who
decided this case by agreeing with the view of learned Judicial Member. Hence,
OGRA Formula cannot be warranted under the law. The Tribunal has already
decided a number of cases holding that OGRA Formula does not constitute
definite information. So, the amendment assessment on the basis of OGRA Formula
hereby stand annulled and deemed assessment u/s 120(1)(b) of the Income Tax
Ordinance, 2001 hereby stand restored.”
3. Against the aforesaid order, the
Department then chose to file Tax Reference in the Lahore High Court,
Rawalpindi Bench under section 133 of the Ordinance and the following legal
question was framed: -
“Whether
‘OGRA formula’ constitutes ‘definite information’ for determination of sales
and therefore, the deemed assessment order passed under section 120 of the
Income Tax Ordinance, 2001 could be amended under section 122(5) of the Income
Tax Ordinance, 2001?”
The
Hon’ble Division Bench of the Lahore High Court, Rawalpindi Bench vide ITR
No.71/2012 dated 12.11.2012, the said legal question was answered in the
negative, against the Department. The Department then filed the CPLA
No.525/2013etc before the Hon’ble Supreme Court of Pakistan which was converted
into CA No.992 of 2015 etc. The Hon’ble Supreme Court decided all the appeals
of the Department in its favour by giving the answer to the above question of
law in the affirmative. The judgment of the Hon’ble Supreme Court titled as Commissioner
Inland Revenue Zone-I, RTO, Rawalpindi Vs M/s Khan CNG Filling Station,
Rawalpindi and Others (2017 SCMR 1414) has held that: -
“16. From the above discussion, it is quite
apparent that the quantum of CNG produced by the respondents in each of the tax
years in question was not determined on the basis of some hypothetical or
arbitrary criteria. The tax authorities first procured from SNGPL the volume of
natural gas consumed by the respondent and its rates that were prevalent during
the tax years in question. Likewise, they procured from OGRA the rates of CNG
prevalent in the tax years in question. All such information was procured by
exercising powers contained in section 176 of the Ordinance. Both the sources
of information i.e. SNGPL and OGRA are bodies that are competent to divulge
such information with absolute correctness as one is the supplier of natural
gas and the other fixes the retail price of CNG in the country. To the
information so procured, which on the face of it falls within the ambit of
‘definite information’, the tax authorities applied OGRA’s conversion formula
to ascertain the quantum of CNG produced from the natural gas consumed in each
of the tax years in question. It then transpired that the sale of CNG has been
under-reported, which led to issuance of amended assessment order. We find no
legal infirmity in the manner in which the tax authorities ascertained the
quantum of CNG produced from the volume of natural gas consumed in the process
of conversion.
17. In view of what has been discussed above, the answer to the legal question
framed by the High Court could only be in the affirmative. We, therefore, allow
these appeals, set aside the impugned judgment passed in all connected cases
and restore the amended assessment
orders issued to the respondents”.(Emphasis Supplied)
The
above judgment of the Hon’ble Supreme Court makes it clear and without any
shadow of doubt has given the answer of the legal question in the affirmative
and allowed all the connected appeals in favour of the Department. Further,
while accepting the appeals of the Department, the amended assessment orders
issued to the taxpayers have also been restored in toto.
4. It is pertinent to mention here that the
appellant/taxpayers filed the review petitions in the order of the august
Supreme Court cited supra (2017 SCMR 1414) with the request to allow them to
argue the case on factual grounds. These review petitions were also dismissed
by the Hon’ble Supreme Court of Pakistan vide order dated 13.09.2017. Copy of
order is placed on file.
5. After the dismissal of the review
petitions by the Hon’ble Supreme Court, the appellant has now again come up
before this forum by the filing of so-called rectification applications under
the garb of section 221 of the Ordinance and has prayed that the appeals of the
appellant be fixed for hearing as
early as possible to meet the ends of justice. The contents of the
rectification applications and the prayers seeking therein are also not
inconsonance with the provisions of section 221 of the Ordinance.
6. This case came up for hearing on 11.09.2019.
On the said date, at the very outset, it was enquired from the learned AR that
under which provisions of law the titled applications have been filed. The Learned
AR after great deliberation submits that these applications may be treated as
filed under section 221 of the Ordinance. When asked to the learned AR that
these applications are time-barred keeping in view of the provisions of
sub-section (4) of section 221 which provides that no order shall be passed
under sub-section (1) of section 221 after the expiry of five years from the
date of the order sought to be rectified whereas in the instant case the order
sought to be rectified was passed on 18.05.2012. In response, the learned AR
seeks time to file the application for condonation of delay. The case was
accordingly adjourned on his request for 16.09.2019. On 16.09.2019 the case was
again fixed for hearing. The learned AR of the appellant vehemently argued that
earlier the appeal was decided on the legal ground only in favour of the
appellant by restoring the deemed order passed under section 120(1)(b) of the
Ordinance and the grounds which relate to the merits of the case remained
undecided by this Tribunal, the same may be decided and rectified by invoking
the provisions of section 221 of the Ordinance. Reliance was placed on the
judgment of this Tribunal titled as M/s Ideal Sweets Bakers & Nimko Vs CIR
& Nimko Vs CIR, Faisalabad (MA(R) No.262/LB/2017). As far as the
applications for condonation of delay in filing of the rectification
applications are concerned, the learned AR contends that there is no willful or
deliberate default on the part of the appellant, therefore, prays for
acceptance of the applications. Reliance was placed on PLD 2009 SC 814, 2002
PTD 1035, 2000 PTD 3410 and (1987) 56 Tax 130. On the other hand, learned DR
opposed the applications on the ground that after the decision of the Hon’ble
Supreme Court of Pakistan, the order of the assessing officer is restored, and
therefore, he contends that this Tribunal has no jurisdiction or is vested with
the power to re-adjudicate and decide the matter afresh in the garb of section
221 of the Ordinance. He, therefore, prays for the rejection of rectification
applications.
6. The arguments
advanced by both the rival parties have been considered and perused the
available record. We have not been able to find out any substance in the
instant rectification application. It is an admitted
fact the appellant had not preferred Tax Reference under section 133 of the
Ordinance or availed any other remedy against the order dated 18.05.2012 passed
by this tribunal until the dismissal of its review petitions by the Hon’ble
Supreme Court. The department filed the Tax Reference before the Lahore
High Court, Rawalpindi Bench under section 133 of the Ordinance against the
order of this Tribunal which was dismissed vide order dated 12.11.2012. The
Department then preferred CPLA No.525/2013 etc before the Hon’ble Supreme Court
of Pakistan which was converted into CA No.992 of 2015 etc. The Hon’ble Supreme
Court decided all the appeals of the Department in its favour by giving the
answer to the question of law in the affirmative and restored the orders of the
assessing officer issued to the appellant. Resultantly, the order of this
Tribunal has merged in the order of the Hon’ble Supreme Court under the
doctrine of merger. This doctrine is extensively
discussed in two judgments, one by Hon’ble Sindh High Court in Glaxo
Laboratories (Pak.) Ltd. vs IAC of Income-Tax reported as 1992 PTD 82
and the other by the Hon’ble Supreme Court of Pakistan in appeals against the
first judgment, having the same title of Glaxo Laboratories Limited reported as
PLD 1992 SC 549 (1992 PTD 932). Facts of the case were that
additional assessment order passed under section 65 of the repealed Income Tax
Ordinance, 1979 was turned down by the Tribunal holding that same amounted to
change of opinion, because during proceedings under section 62 the Assessing
Officer would have or should have taken notice of extraordinary receipts of 130
million shown in the audited accounts of the assessee. Later, the same amount
was attempted to be taxed by issuing notice under section 66-A of the late
Income Tax Ordinance of 1979. The notice was challenged in constitutional
jurisdiction before Hon’ble Sindh High Court. Number of judgments from both
jurisdictions of India and Pakistan were discussed elaborately and the issuance
of notice was upheld by Sindh High Court. It was held that the assessment order
under section 62 had not merged in the order of the Appellate Tribunal of
cancelling the order under section 65. In appeal, the apex Court reversed the
judgment of Sindh High Court and held that the assessment order had merged into
the order of Tribunal therefore notice under section 66-A could not have been
issued. Before looking at the relevant portion of the Supreme Court's judgment,
it would be advantageous to refer to some parts from both the judgments, where the
concept of the doctrine of merger is discussed. The Supreme Court reproduced
the definition of 'Merge' and Merger from Corpus Juris Secundum (Volume 57, at
page 1067): -
"The verb 'to merge' has been
defined as meaning to sink or disappear in something else, to be lost to view
or absorbed into something else, to become absorbed or extinguished, to be
combined or be swallowed up.
'Merger' is defined generally as
the absorption of a thing of lesser importance by a greater, whereby the lesser
ceases to exist, but the greater is not increased, an absorption or swallowing
up so as to involve a loss of identity and individuality."
While Sindh High Court explained this doctrine
by following the judgment of the Hon’ble Supreme Court of Pakistan in the case
of F.A.
Khan vs. The Government of Pakistan PLD 1964 SC 520: -
"If the propositions stated above are to be accepted appears to be good ground for holding that the passing of an order subject to appeal will not necessitate the filing of a suit for it is only a step in proceeding and not a final order. In any case once, an appeal is tiled the matter becomes sub-judice and when the appellate authority passes an order the order of the original authority disappears and merges in the order of the appellate authority so that there remains in existence only the appellate order and this order can be made the basis of a suit."
The Sindh High Court referred Indian Supreme
Court from its judgments in case of Messrs Gojer Brothers (P.) Ltd. v. Shri Ratan
Lal Singh (AIR 1974 SC 1380): -
"10. The juristic justification of the doctrine of merger may be sought in the principle that there cannot be, at one and the same time, more than one operative order governing the same subject-matter. Therefore, the judgment of an inferior Court, if subjected to an examination by the superior Court, ceases to have existence in the eye of law and is treated as being superseded by the judgment of the superior Court. In other words, the judgment of the inferior Court loses its identity by its merger with the judgment of the Superior Court."
Having referred to the concept of the doctrine
of merger, now we intend to be benefited from the relevant extract from the
judgment, noted above, in Glaxo Laboratories case, wherein the Hon’ble Supreme
Court has summed up its discussion in the following words: -
“(8) The learned Judges of the High
Court have also referred to State of Madras v. Madhurai Mills Limited Co. AIR
1967 SC 681 in which reference was made to Amritlal Bhogilal and Co. (supra)
and it was observed that the doctrine concerned is not a doctrine of rigid and
universal application and it cannot be said that whenever there are two orders,
one by the inferior Tribunal and the other by the superior Tribunal passed in
appeal or revision, there is fusion or merger of two orders irrespective of the
subject-matter of the appellate or revisional order and the scope of the appeal
or revision contemplated by the particular Statute. To support this observation
reference was made to Amritlal Bhogilal and Company and it was observed that:-
"the order of assessment made
by the ITO in that case was a composite order namely the order granting
registration of the firm making the assessment on the basis of the
registration."
With respect this observation does not seem to correctly refer the observations
of Amritlal Bhogilal, which has been quoted above that both the orders of assessment
and granting registration were independent and separate orders. It was further
observed that: -
"the order granting
registration to an assessee firm is an independent separate order and it merely
affects or governs the procedure to be adopted in calculating or recovering the
tax found due."
Therefore, the observation made in Madhurai Mills is not supported by Amritlal Bhogilal. The observation, with respect, seems to have been misunderstood and not correctly quoted. It is true that it is the nature and scope of the provision of law as provided for challenging an order in appeal or revision which determines the effect and scope of such order. But where such an order has been passed in exercise of such jurisdiction it becomes final and operative in respect of the order against which appeal or revision has been filed. The appeal provided under the Income Tax Ordinance is not of a limited nature. It is however, to be noted that if two separate orders in respect of two separate subjects/proceedings have been passed in a consolidated order which are severable and one of them is appealable while the other is not, then the appeal filed in such case will only affect that part of the order which is appealable. In Amritlal Bhogilal there were two separate orders and appeal was filed against the assessment order only. It was not a case where there was only one order, which was appealable In a case where there is only one order against which appeal has been provided, filed and decided then there does not seem to be a scope for argument that as some objections or pleas which did exist but have not been taken, pressed or considered, that part of the order which is covered by such plea do not merge in the appellate order. Such a view will create uncertainty and is bound to result in confusion and chaos. The law does not favour uncertainties in decision and in revenue matters one has to be very specific and certain. The Tribunal has considered the receipt of Rs.130 million at length and has come to the conclusion that it must have been taken into consideration by the ITO while making assessment under the total audit scheme. The result is that the order of the Income Tax Officer merged into the order of the Tribunal and, therefore, the IAC did not have the jurisdiction to initiate action under section 66-A of the Income Tax Ordinance for reopening the matter. In this case principles of res judicata will not apply as it is governed by the provisions of section 66-A which lays down the boundaries and parameters for exercise of jurisdiction under it. The fact that in 1991 subsection (1-A) was added authorizing IAC to initiate action under section 66-A even if appellate and revisional order has been passed, supports the contention that such a power did not exist earlier. The question whether it is applicable to the present case is kept open and we refrain from expressing any opinion at this stage. We, therefore, allow the appeal and set aside the impugned judgment and consequently notice issued under section 66-A of the Income Tax Ordinance is declared as without jurisdiction and of no legal effect."
It is pertinent to mention here that the appellant filed
the review petitions in the order of the august Supreme Court cited supra (2017
SCMR 1414) for allowing them to argue the case on factual grounds. These review
petitions were also dismissed by the Hon’ble Supreme Court of Pakistan vide
order dated 13.09.2017. According to the judgment of the Hon’ble Supreme Court,
the amended assessment orders passed by the assessing officer have been
restored in toto. These facts were confronted to the learned AR of the
appellant that how this Tribunal can rectify its order which has merged in the
order of the Hon’ble Supreme Court and the Hon’ble Supreme Court has also
restored the amended assessment orders passed by the assessing officer. Further,
the plea of the appellant to decide the factual grounds was also declined by
the Hon’ble Supreme Court in review petitions as well. We are afraid that after
the dismissal of the review petitions by the Hon’ble Supreme Court, on the same
cause how the subject application can be filed before this tribunal. The learned AR could not satisfy this Tribunal
with any plausible explanation and is unable to dislodge the aforesaid facts
and settled law on the issue.
7. Further the
arguments advanced by the learned AR read with the contents of the rectification
applications would make it clear that firstly the contents and prayer of the
applications do not in line with the provisions of section 221 of the
Ordinance. Secondly, no mistake is pointed out by the appellant which he sought
to be rectified. Thirdly, the amended assessment orders have been restored in
toto by the Hon’ble Supreme Court vide its judgment cited supra. How this
tribunal can disturb the amended assessment order in the garb of section 221.
Fourthly, the review petitions have been dismissed by the Hon’ble Supreme Court
on the same cause. If the applications are accepted then there is no end of
proceedings and it would be carried on for an unlimited period which is not the
intention of the legislature. Even otherwise, it is not a simple rectification
application in respect of a mistake apparent on the face of record within the
contemplation of section 221 ibid rather it was a re-assessment of the tax
liability of the appellant on the basis of the record. The expression “mistake
apparent on record” means the error or mistake so manifest and clear which, if
is permitted to remain on record, may have a material effect on the case. But
an error of fact or law, which having direct nexus with the question of
determination of rights of parties affecting their substantial rights, or
causing prejudice to their interest, is not a mistake apparent on the record to
be rectified under section 221 ibid. The mistake must be of the nature, which
is floating on the surface of the record and must not involve, an elaborate
discussion or detailed probe or process of determination. The scope of
rectification application is very limited keeping in view the law laid down by
the Apex Court of Pakistan in the judgments reported as PLD 1964 SC 410 and CIT Karachi VsShadman Cotton Mills Ltd,
Karachi (2008 PTD 253) and CIT Vs National Foods Laboratories (1992
SCMR 687) wherein it was held as under: -
“It is well-settled law that rectification jurisdiction is a very limited jurisdiction, which can only be exercised for rectifying the mistake, which is apparent on record or which is floating on the surface of the record. This jurisdiction cannot be assumed to set aside a well-reasoned order, which is passed after due deliberation, application of mind, and due consideration of relevant provisions of law and the applicable case law.”
We do not find any error or illegality in the order passed
by this tribunal. The Hon'ble Supreme Court of Pakistan, in the case of M/s
National Foods Vs. CIT cited supra while defining the scope of rectification,
has held that a mistake should be apparent from the record, floating on the surface,
and may not require any investigation or further evidence. It has been further
held that a mistake which is sought to be rectified must be so obvious and
apparent from the record that it may immediately strike on the face of it. It
may not be something which may be established by a long drawn process of
reasoning on issues on which there could be conceivably two views or opinions.
We may further observe that the scope of rectification is limited to the extent
of rectification of an" error apparent from the record" hence the
said provision cannot be invoked as an alternate or substitute of an appeal,
revision, or review. In the case titled CIT Karachi Vs Shadman Cotton Mills Ltd,
Karachi (2008 PTD 253) it has been held that the question as to
whether certain expenses can or cannot be deducted for the purposes of
assessment is a material question which cannot be brought within the ambit of
rectification.
8. From the various judgments of the Supreme
Court above referred to and other High Courts, it is clear that the power
under section 221 of the Ordinance is not to review its earlier order but
only to amend it with a view to rectify any mistake apparent from the record.
What can be termed as "mistake apparent"? "Mistake" in
general means to take or understand wrongly or inaccurately, to make an error
in interpreting, it is an error, a fault, a misunderstanding, a misconception.
Mistake in taxation laws has a special significance. It is mostly subjective
and the dividing line is thin and indiscernible. "Apparent" means
visible, capable of being seen, easily seen, obvious plain, open to view,
evident, appears, appearing as real and true, conspicuous, manifest, seeming.
The plain meaning of the word "apparent" is that it must be something
which appears to be ex facie and incapable of argument and debate. If such a
"mistake apparent on the face of record" is brought to the
notice, section 221 empowers the Authorities and Tribunal to amend the
order passed under section 221. Amendment of an order does not mean the obliteration
of the order originally passed and its substitution by a new order.
9. What is a mistake apparent on the face of
the record or where does a mistake cease to be a mere mistake, and become
mistake apparent on the face of the record is rather difficult to define
precisely, scientifically, and with certainty. An element of indefiniteness is inherent
in its very nature and it must be discernible from the facts of each case by a judiciously
trained mind. Mere existence of a mistake or error would not per se render the
order amenable for rectification, but such a mistake must be one which must be
manifest on the face of the record.
10. We have also noticed that the legislature, in its wisdom, has prescribed the limitation period
under subsection (4) of section 221 of the Ordinance for making of the
rectification order under sub-section (1) of section 221 ibid. Sub-section (4)
provides that no order under sub-section (1) may be made after five years from
the date of the order sought to be rectified whereas in the instant case the
appellant has sought the rectification of the order passed by this tribunal on 18.05.2012.
Hence, after the lapse of five years from the order sought to be rectified,
this Tribunal has no jurisdiction to pass an order under section 221 of the
Ordinance and even is not vested with the power to condone the period of
limitation. Reliance may be placed on the judgment of the Hon’ble Islamabad
High Court titled as Commissioner
Inland Revenue (Legal), L.T.U., Islamabad Vs M/s Bahawalpur Engineering (Pvt.)
Ltd, Islamabad (2016 PTD 2579). The judgments cited by the learned AR on this issue are distinguishable
and not relevant under the peculiar circumstance of the instant case.
11. For what has been discussed above, these applications
are dismissed being devoid of merits.
Sd/- (M.M. AKRAM) JUDICIAL MEMBER | |
Sd/- (NADIR MUMTAZ WARRAICH) ACCOUNTANT MEMBER |
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