ISLAMABAD: The Appellate Tribunal Inland Revenue (ATIR), Lahore has recalled and withdrawn its own order under own motion powers, for entertaining an appeal without any written order passed/issued by the Commissioner (Appeals).

The ATIR by using own motion powers has declared that ATIR cannot entertain an appeal under Section 131 of the Income Tax Ordinance, 2001 without any written order passed/issued by the Commissioner (Appeals) under Section 129 and order for delisting of appeals filed by a China-based taxpayer at Lahore Bench.

It is reliably learnt that a landmark order has been passed by the ATIR by recalling its own order earlier passed on some wrongly communicated facts and law under own motion powers under Section 221 of the Income Tax Ordinance, 2001.

The ATIR order states, “This bench vide order dated 17.06.2022 passed in the case of China National Electric Wire & Cable Import & Export Corporation, Lahore Vs. CIR, RTO, Lahore, committed some grave mistakes of law, which is prima facie based on some omitted law, specifically on the part of learned A.R who had stated at the bar that learned CIR-Appeals has refused to entertain appeals manually, which is factually incorrect and a patent wrong. Section 221 ITO delineates a mechanism for rectification of mistakes apparent from the record. Waheed Shahzad Butt, Advocate High Court “a Pro Bono Publico Lawyer” was called in person for assistance of the court as Amicus Curie. On court’s question he has briefly elaborated the scheme of ordinance with specific reference of filing of appeal before ATIR, jurisdictional domain and limitations/conditions provided under Section under Section 129(1)(a), 129(1)(b), 129(4), 131(1) and 221 of the Income Tax Ordinance, 2001.

The advocate further states it is a misconception to assume that power of rectification is merely confined to rectification of arithmetical or typographical mistakes, which in fact and law extends to the rectification of mistakes of fact and law, provided such “mistakes are apparent from the record”.

The ATIR can entertain an appeal u/s 131(1) against an order passed by the Commissioner-IR (Appeals) u/s 129. Sub-section 4 of section 129 explicitly mandates that as soon as practicable after deciding an appeal, the Commissioner-IR (Appeals) shall serve his order on the appellant and the Commissioner. It is very strange to note that in case if there is no concept of a written order by the Commissioner-IR (Appeals), Sections 127, 128 and 129 would become redundant. It’s a trite law that redundancy is not attributable to the law.

Legally the appeals of the taxpayer should not have been entertained by this Tribunal under Section 131, as there was no written order in the field in terms of Section 129 by the Commissioner (Appeals). Be that at it may, without going into the controversy of time limitation and merits of the case, as a sequel to the foregoing and in exercise of powers conferred under Section 221, the order dated 17.06.2022 is re-called and withdrawn ab-initio. Registration is directed to delist the same from its record, the ATIR ordered.

Copyright Business Recorder, 2022