SHAFQAT RASOOL VS ISLAMIC REPUBLIC OF PAKISTAN
1992 P T D 889
[Lahore High Court]
Before Malik Muhammad Qayyum, J
SHAFQAT RASOOL
versus
ISLAMIC REPUBLIC OF PAKISTAN through Secretary Finance, Islamabad and others
Writ Petition No.2307 of 1992, decided 14th March, 1992.
(a) Income Tax Ordinance (XXXI of 1979)--- ----S.59---Self Assessment Scheme for 100-1991, para. 4(i) & (ii), Note---Total. audit---Gross understatement of income by assessee---Note appended to para. 4(i) of Self-Assessment Scheme for 1990-91 applied only where a case had been selected through computer balloting under para. 4(i) of the Scheme and not when the selection for total audit was under para. 4(ii), with the approval of the Regional Commissioner of Income-tax on the ground of gross understatement of income by assessee.
(b) Constitution of Pakistan (1973)---
----Art.25---Provision of Art. 25 does not prohibit reasonable classification based upon intelligible differentia.
(c) Income Tax Ordinance (XXXI of 1979)---
----S.59---Self-Assessment Scheme for 1990-1991, para. 4(i) & (ii)---Import of para. 4(i) & (ii)---Underlying rationale in confining the applicability of Note granting immunity for two years to cases falling under para. 4(i).
The import of para. 4(i) and para 4(ii) of self-Assessment Scheme for 1990-91 are totally different. In the former case, the selection for total audit is made by the computer in the random balloting conducted without there being any fault on the part of the assessee, while in the cases covered by para 4(ii) the total audit is ordered on account of gross understatement of income. The two situations are therefore, not parellel or similar. The underlying rationale in confining the applicability of the note granting immunity for two years to cases falling under sub-para. (i) of para 4 is not difficult to see. Total audit in such a case, is not on account of any fault on the part of the assessee while in the cases covered by sub-para. (ii) the total audit takes place due to the misstatement made by him and therefore, in view of his past conduct, he cannot be granted any immunity.
Ch. Muhammad Ikram Zahid for Petitioner.
ORDER
This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, calls in question a notice issued by the respondents to the petitioner informing him that his case has been selected for total audit.
2. The petitioner, who is an assessee, submitted his return under the Self-Assessment Scheme for the year 1990-91. However, the case of the petitioner was taken up for total audit under para. 4 (ii) of the Circular No.5 of 1990 issued by the Central Board of Revenue on 21st July, 1991 as it was found that he had grossly understated his income. The assessment for that year has since been completed and is not in dispute.
3. For the assessment year 1991-92, the petitioner again submitted his return under the Self-Assessment Scheme. He has however, been informed that his case -has been selected for the total audit in the balloting conducted by the computer.
4. The learned counsel for the petitioner has contended that according to the note to para. 4 of Circular No .9 of 19%) if a case has once been selected for total audit, it cannot be earmarked for balloting for next two years. In order to appreciate this contention a reference to para. 4 to the Circular is necessary which is as under:---
"From amongst those qualifying for the Self-Assessment Scheme, returns may be selected for audit--
(i) through computer ballot up to five per cent of the returns received. However, from amongst the returns in which income declared for the assessment year 1991-92 is higher by 25% or more as compared with the last assessed income or the income assessed for the assessment year 1987-88, whichever is the higher, the selection shall be restricted up to a maximum of three per cent. These percentages may vary within a trade or income group or forum circle to circle, and
(ii) with the approval of Regional Commissioner of Income .Tax, where gross under-statement of income is suspected on the basis of definite information based on material evidence.
NOTE: A case once selected through computer ballot will- not be earmarked for such ballot in the next two years."
5. The note in quetion, as on the face of it, has no application to the case of the petitioner, for it applies only where a case had been selected through computer balloting obviously under para. 4 (i) of the circular and not when the selection for total audit is under para 4(ii), with the approval of the Regional Commissioner of Income Tax, on the ground of gross understatement of income
6. The learned counsel, however, challenged the validity of the above note contending that it violates the equality clause enshrined in Article 25 of the Constitution of the Islamic Republic of Pakistan 1973, it was emphasised that immunity from total audit for next two years, should have been made applicable to all cases falling under para. 4 and its applicability should not have been restricted to those cases which arc selected for total audit through computer balloting under para. 4(i). This, according to the learned counsel,, amounts to unfair discrimination which is prohibited by Article 25 of the Constitution.
7. This contention of the learned counsel is devoid of any force. It is well settled and needs no gainsaying that Article 25 of the Constitution does not prohibit reasonable classification based upon intelligible differentia. In the present case, the import of para. 4(i) and para. 4(ii) are totally different. In the former case, the selection for total audit is made by the computer in the random balloting conducted without there being any fault on the part of the assessee, while in the cases covered by para. 4(ii) the total audit is ordered on account of gross understatement of income. The two situations are therefore, not parellel or similar. The underlying rationale in confining the applicability of the note granting immunity for two years to cases falling under sub-para. (ii) of para. 4 is not difficult to see. Total audit in such a case, as already observed, is not on account of any fault on the part of the assessee while in the cases covered by sub-para. (ii) the total audit takes place due to the misstatement made by him and therefore, in view of his past conduct, he cannot be granted any immunity.
There is no force in this petition. It is dismissed in limine.
M.R.A./S-115/L????????????????????????????????????????????????????????????????????? Petition dismissed.