1992 P T D 1681

[Supreme Court of Pakistan]

Present: Ajmal Mian, Sajjad Ali Shall and Saleem Akhtar, JJ

CENTRAL BOARD OF REVENUE and others

versus

CHANDA MOTORS

Civil Appeal No.263-K of 1991, decided on 18/05/1992.

(On appeal from the judgment dated 1-7-1990 of the Sindh High Court, Karachi, passed in C.P. No.D-895 of 1989).

(a) Income Tax Ordinance (XXXI of 1979)---

----Second Sched., cl. 172---C.B.R. Circular No.9 of 1985---Object and scope of cl. 172 of Second Schedule to Income Tax Ordinance, 1979 and C.B.R. Circular No.9 of 1985---Meaning and scope of word "assessment"---Expression "assessment already finalized" explained.

Circular 9 of 1985 has been issued by Central Board of Revenue to clarify and explain legal implications arising from benefit of set off which is conferred upon assessee by addition. of clause 172 in the Second Schedule to Income Tax Ordinance, 1979 which amendment was brought in force on 29-7-1985.

Clause 172 of second Schedule to Income Tax Ordinance 1979 provides that set off is allowed against the income, which has not been assessed in respect of any year including and upto assessment year 1984-85. So the intention is to give incentive to bring forward the income which, for any reason, was not declared by the assessee or escaped assessment. Cut off date for income nut assessed is 29-7-1985 when clause 172 was added. Circular 9 of 1985 is to be read in the light of clause 172 of the Second Schedule of Income Tax Ordinance, 1979. Circular 9 of 1985, while clarifying and giving further details of the scheme has classified cases into five categories, which are to get or not benefit of the scheme. First category is of cases pending assessments in which orders of assessment were not passed upto cut off date. Set off could be claimed in such cases. Second category is of cases of re opening of assessments in which set off is allowed. Third category is of cases where untaxed sums discovered are less than the investment in the purchase of bonds. Fourth category is of cases of assessments already finalised and pending appeals in which set off is not allowed. Fifth category is of cases of future assessments.

Since in Circular 9 of 1985 word "assessment" is repeatedly used and not only that but six categories of cases are specified showing relative importance of different stages of "assessment" vis-a-vis claim of set off, it would be necessary and proper to see whether "assessment" has any legal definition. Word "assessment" is defined under section 2(vii) of Income Tax Ordinance, 1979 as including reassessment and additional assessment and the cognate expressions are to be construed accordingly. Circular 9 of 1985 clearly provides specifically separate category of cases of reopening of assessments as contemplated under paragraph 3(b) in which there is no mention of passing of order of reassessment, which shows that the intention is that these would be pending cases reopened for assessment at par with cases in paragraph 111(a). However, paragraph III(d) covers category of cases not entitled to the benefit of set off in which assessments had been finalized and pending appeals arising therefrom.

It is the language used in Paragraph III(d) of Circular 9 of 1985, which requires details examination. What is meant by "assessment already finalized"? "Assessment" is defined in the Income Tax Ordinance, 1979, as including reassessment and additional assessment, which shows that scope of assessment is wider and larger than its ordinary meaning. Word "finalized" is derived from the word "final" which is defined to mean "last; decisive conclusive: respecting the end or motive: of a judgment ready for execution; last of series". "Finality" is defined as state of being final, completeness or conclusiveness. Word "Final" is defined as "last; conclusive; decisive; definitive; terminated; completed. In its use in reference to legal actions this word is generally contrasted with "inter locutory". Viewed in the light of meanings of the words ."assessments" and "finalized", it appears that assessment orders as such do not have touch of finality unless all the forums are exhausted in which such orders can be challenged so that the order takes the shape of final decision.

(b) Income-tax---

----Assessment---Assessment orders as such do not have touch of finality unless all the forums are exhausted in which such orders can be challenged, so that the orders take the shape of final decisions.

Assessment orders as such do not have touch of finality unless all the forums are exhausted in which such orders can be challenged so that the orders take the shape of final decisions.

Order of Assessment passed by Income-tax Officer is an order of original authority but is not final for the reason that it can be challenged in appeal or revision as the case may be and would be final only when it goes through all the forums and finding of the last forum shall be binding as conclusive.

Legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.

When an appeal is filed against an assessment order before the A.A.C. the assessment is thrown open and the appellate proceedings constitute a continuation of the assessment proceedings.

The legislature when it provides a hierarchy of tribunals for the determination of a dispute is really providing one complete procedure for such determination, proceedings before different tribunals being only steps in this procedure.

Order passed in original proceedings is not final unless it crosses all the forums set up under that law in which it can be challenged and the order of the last forum would become final.

Garikapati Veeraya v. N. Subbiah Choudhry and others PLD 1957 SC (Ind.) 448; Commissioner of Wealth Tax v. Vimlaben Vadilal Mchta (1984) 145 ITR 11; F.A. Khan v. The Government of Pakistan PLD 1964 SC 520 and Chatturam and others v. Commissioner of Income Tax, Bihar (1947) 15 ITR 302 ref.

R.K: Garg v. Union of India and others 1982 SC Cases (Tax) 30 distinguished.

(c) Income Tax Ordinance (XXXI of 1979)...

---.-Second Schedule, clause 172---Central Board of Revenue Circular No.9 of 1985---Assessments of a registered firm for the years 1979-80 to 1983-84 were made under Self-Assessment Scheme---Such assessments were re-opened and reassessment orders were passed on 15-6-1985---Commissioner in appeal set aside re-assessment orders---Assessment on the basis of appellate order was made on 31-5-1988 with additions ---Assessee had purchased Special National Fund Bonds on 31-8-1985 and claimed set off but Assessing Officer refused the claim relying on C.B.R. Circular No.9 of 1985, pare III(d)---Assessment order passed by Assessing Officer being not a finalized assessment, para II1(d) of the C.B.R. Circular was not attracted and assessee was justified in claiming the benefit of set off in circumstances.

PLD 1964 SC 520; PLD 1964 Kar. 587; PLD 1957 (Ind.) SC 448; Garikapati Veeraya v. N. Subbiah Choudhry and others PLD 1957 SC (Ind.) 448; Commissioner of Wealth Tax v. Vimlaben Vadilal Mehta (1984) 145 ITR 11; F.A. Khan v. The Government of Pakistan PLD 1964 SC 520; Chatturam and others v. Commissioner of Income Tax, Bihar (1947) 15 ITR 302 ref.

R.K. Garg v. Union of India and others 1982 SC Cases (Tax) 30 distinguished.

Mrs. Rashida Patel, Advocate-on-Record for Appellants.

Rehan Hassan Naqvi, Advocate Supreme Court and M.S. Ghaury, Advocate-on-Record for Respondent.

Date of hearing: 18th May, 1992.

JUDGMENT

SAJJAD ALI SHAH, J.---This appeal with leave is directed against the judgment dated 1-7-1990 of Division Bench of the High Court of Sindh at Karachi, whereby Constitutional Petition No.D-895 of 1989 filed by respondent herein is allowed. In consequence letters dated 1-6-1989 and 20-8-1989 have been quashed, whereby request of the respondent for benefit Of clause 172 of Second Schedule of Income Tax Ordinance, 1979, in terms of Circular 9/85 was rejected on the ground that assessment in question had finalised and their case was pending in appeal on 31-3-1986, by which date the declaration was submitted to the State Bank of Pakistan, hence they were not entitled to the benefit claimed by them.

2. Briefly stated the relevant facts giving rise to this appeal are that respondent is registered firm constituted by three partners and is engaged in the business of transport contractors and carriers. Assessment for years 1979-80 to 1983-84 were finalised under section 59(1) of Income Tax Ordinance, 1979 (hereinafter to be referred as the said Ordinance) under self- assessment scheme. Those assessments were reopened on 10-2-1985 and on 15-6-1985 reassessment orders were passed by assessing income separately against each assessment year. Reassessment orders were set aside in appeals allowed by the Commissioner of Income-tax vide order dated 6-12-1986. Giving effect to the appellate order, assessment orders were passed on 31-5-1988 with agreement of respondent on income as noted below:-

"Assessment Year	Income u/s 62/65
1979-80	Rs.3,71,586
1980-81	Rs.5,54,877
1981-82	Rs.5,30,073
1982-83	Rs.2,45,239
1983-84	Rs.2,02,650."

3. The abovementioned incomes were assessed as consequence of following additions which were maintained with agreement of respondent as noted against each assessment year:---

"Assessment Year
1979-80	Rs.3,39,682
1980-81	Rs.1,85,333
1981-82	Rs.4,36,385
1982-83	Rs.1,52,789
1983-84	Rs. 89,650

4. Respondent-firm purchased Special National Fund Bonds (to be referred hereafter as the said bonds) of the value of Rs.7 lacs while three partners purchased the said bonds of value of Rs.1 lac each. Total amount of the said bonds so purchased was Rs.10 lacs. Request was made for benefit of adjustment in Income Tax assessment on account of investment in the purchase of the said bonds as contemplated by Circular 9/85 which was rejected and Income-tax Officer refused to rectify the order by setting off the said bonds against additions by relying on para. III(d) of Circular 9 of 1985, which provides, that benefit would not be available if assessments were already finalised an Id the same would apply to cases pending in appeals. Respondent made representation to the Regional Commissioner of Income-tax, Southern Region, Karachi, for reconsideration of the matter but it was dismissed on advice from Central Board of Revenue (to be referred as C.B.R.). Respondent in the last resort made representation to the Chairman, C.B.R. seeking clarification on legal position but reply was same, hence respondent filed constitutional petition in the High Court of Sindh.

5. It was submitted on behalf of the respondent in the High Court that stand taken by the department to the effect that since reassessment order was passed on 15-6-1985, as such it stood finalised, disentitling respondent to claim benefit of the scheme, becoming operative from 30-7-1985 was not factually and legally correct for the reason that all the proceedings taking place in regard thereto were steps in a series of proceedings culminating in that order. Bonds purchased during pendency of proceedings could be claimed as set off against tax demand. It was further submitted on behalf of the respondent that assessment was finalised on 31-5-1988, as such assessee was entitled to the benefit of Circular 9 of 1985.

6. In writ proceedings before the High Court, appellants herein who were impleaded as respondents, in comments took up the stand that as per their interpret1on, scope of scheme of setting off the income against the said bonds extended to cases in which assessment orders stood set aside on 1-9-1985 and since assessment orders in this case were set aside on 6-12-1986, therefore, assessee was not entitled to set off as per Para III(d) of Circular 9 of 1985, as the case of assessee was pending in appeal. Secondly, assessee did not pursue remedy to file an appeal under section 129 of Income Tax Ordinance, 1979, which became time-barred.

7. High Court, after hearing arguments of both sides in the impugned judgment, while dealing with the contentions raised and case-law cited for and against the proposition, has summed up the conclusions in paragraph 17 which is reproduced as under:-

"In the instant case the assessments were finalised under section 59(1) of the Ordinance. It is an admitted fact that the assessments were opened under section 65 of the Ordinance. The reassessment orders under section 62 read with section 65 of the Ordinance were passed on 15-6-1983. It has come on record that the said orders were set aside by the appellate authority on 6-12-1986. Consequent upon giving effect to the appellate order assessment orders were passed on 31st May, 1988, with agreement of the petitioner on income notice against each assessment order. These are the only assessment orders which are in the Geld. Applying the dictum laid down in PLD 1964 SC 520, PLD 1964 Karachi 587, and PLD 1957 SC (Ind.) 448, we hold that the original assessment orders, reassessment orders and the final assessment orders are really but steps in a series of judicial proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. It would, therefore, be apparent that provisions of clause 172 and para III(d) of Circular 9 of 1985 are attracted in the instant case and the petitioner is entitled to set off Special National Fund Bonds against the additions made in the assessment orders dated 6-12-1986 and 31-5-1988:"

8. The question that now arises for consideration before us is whether respondent, who has purchased the said Bonds on 31-8-1985 is entitled to set off the value of the Bonds against additions in their income vide assessment order dated 31-5-1988. In other words, whether benefit of clause 172 of Second Schedule of Income-tax Ordinance, 1979 is available in terms of Circular 9 of 1985 to the respondent. We have heard learned counsel appearing for both parties and with their assistance have gone through the whole record.

9. There are certain facts about which there is no dispute between the parties. Assessment in question is with regard to assessment years from 1979-80 to 1983-84. Assessment for the above period was made under self assessment scheme. These assessments were reopened for reassessment under section 65 of the said Ordinance on 10-2-1985. Re-assessment orders under section 62 read with section 65 of the said Ordinance were passed on 15-6-1985. Meanwhile other developments took place. Finance Minister of Government of Pakistan was pleased to announce in his budget speech 1985 that. government would issue three new types of bonds. In consequence Circular 4 of 1985 (Income Tax) was issued on 1st July 1985 containing instructions to lay down the treatment to be given to these bonds. These three bonds . include Special National Fund Bonds which have been issued for mopping up black money so that it is converted into white money which can be employed in the country for productive purposes. It provided further that these bonds which will be issued at Rs. 90 for every Rs. 100 with maturity period of two years would be registered in the names of the buyers and shall be non negotiable but may be accepted by the Banks as collateral. For the purpose of Income Tax, it is declared that source through which the investment in these bonds is made would not be questioned by Income Tax department and the purchaser of the Bonds would not be liable to tax, penalty or prosecution under the Income Tax Law. On maturity, purchasers would be eligible to bring money into their books. Return of investment in these bonds would be free from levy of Income-tax.

10. S.R.O. 721(1)/85 dazed 29-7-1985 has been issued under section 14(2) of the Income Tax Ordinance, 1979, whereby amendment is brought in Second Schedule to the said Ordinance by insertion of clause 172, which is reproduced as under:---

"Set off against income for investment in the purchase of Special National Fund Bonds.

172-Any income, from whatever source derived, which has not been assessed in respect of any year including and upto the assessment year 1984-85 not exceeding such amount as is invested by a taxpayer in the purchase of the Special National Fund Bonds issued under the Special National Fund Bonds Rules, 1985."

11. On 30th July, 1985 Circular' 9 of 1985 (Income-tax) has been issued and as stated in paragraph 2 thereof, it became necessitated on account of large number of queries made by taxpayers regarding benefit of investment in the purchase of Special National Fund Bonds vis-a-vis their Income Tax assessment. In paragraph 3 of the Circular it is mentioned that it has been issued in pursuance of the policy of the Government to liberally allow the taxpayers to come forward for whitening their black money through these bonds. Clarification in respect of implications of the notification has been spelled out therein as under:-

"(a) Pending Assessments: --In all pending assessment for and including the period up to the assessment year 1984-85 tax payers would be entitled to claim set off against income proposed to be assessed up to the amounts invested in the purchase of these Bonds. However, such credit would only be admissible in the case of assessments of the person (as defined in the Income Tax Ordinance 1979) in whose name the Bonds are purchased.

(b) Re-opening of Assessments.- In case any sums or properties are found not to have been offered for taxation by a tax payer for and including the period up to the assessment year 1984-85, set-off against income would be allowed for the amount invested by the tax payer in the purchase of these Bonds. Only that amount would be taxed, alongwith all consequential actions, which exceeds the amount invested in the purchase of Bonds. Assessments in such cases will be completed with the approval of the Central Board of Revenue.

(c)........................................................................................................

(d) Assessments already finalised.--- Assessments already finalised would however, remain unaffected and the tax payer would not be entitled to claim any benefit or credit therein. Cases pending in appeal will likewise remain unaffected.

(e) ................................................................................................................

12. Further facts beyond dispute are that against reassessment order dated 15-6-1985, appeal was filed in which reassessment order was set aside on 6-12-1986 and fresh consequential assessment order was passed on 31-5-1988 with agreement of parties. Request for set-off was made in writing on 13-6-1988. Controversy between the parties is narrowed down to the question whether case is covered by paragraph III(b) as claimed . by the respondent/assessee or paragraph III(d) of Circular 9 of 1985 as claimed by the appellants/department. Stand taken further by the department is that to invoke clause 172 of Second Schedule to the Income-tax Ordinance, 197-9, main pre-condition is investment in the purchase of bonds to be made of an un-assessed income. This ground was not pressed further by the department, may be for the reason that there was no material with them on the basis of which they could claim that bonds were purchased from income, which was assessed, hence ultimately vide letter dated 16-5-1988, assessee was informed that his case fell under Para 111(d) as his case was finalised before issue of Circular and this stand was maintained upto Central Board of Revenue.

13. In the instant case according to the department, assessment was finalised on 15-6-1985 which was before the Scheme came into operation on 30-7-1985.and on that day the case of the assessee was pending in appeal under section 129 of the Income-tax Ordinance, 1979, as such benefit would not be allowed to the assessee as their case fell under paragraph II1(d) of Circular 9 of 1985, as assessments were already finalised and the case was pending in appeal on the relevant date. It, therefore, appears that whole controversy can be resolved by and is dependent upon correct construction of provisions of Circular 9 of 1985 with particular emphasis on the use of words and import of "assessment already finalised" in para. III(d) thereof.

14. Before we go into detailed construction of Circular 9 of 1985, it would be helpful if we refer to Clause 172 of Second Schedule of Income-tax Ordinance, 1979, which was added by S.R.O. 721(1)/85 issued on 29-7-1985, reproduced above. In very unequivocal terms this clause provides that set off is allowed against the income, which has not been assessed in respect of any year including and upto assessment year 1984-85. So the intention is to give incentive to bring forward the income which, for any reason, was not declared by the assessee or escaped assessment. Cut off date for income not assessed is 29-7-1985 when clause 172 was added. Circular 9 of 1985 is to be read in the light of clause 172 of the Second Schedule of Income-tax Ordinance, 1979. Circular 9 of 1985, while clarifying and giving further details of the scheme, has classified cases into five categories, which are to get or not benefit of the scheme. First category is of cases pending assessments, in which orders of assessment were not passed upto cut off date. Set off could be claimed in such cases. Second category is of cases of re-opening of assessments in which set off is allowed. Third category is of cases where untaxed sums discovered are less than the investment in the purchase of bonds. Fourth category is of cases of assessments already finalised and pending appeals in which set off is not allowed. Fifth category is of cases of future assessment.

15. In the instant case, as stated earlier; for assessment years 1979-80 to 1983-84, assessment was made under self-assessment scheme as contemplated under section 59(1) of the Income-tax Ordinance, 1979. This assessment was reopened on 10-2-1985 for reassessment under section 65 of the Income-tax Ordinance, 1979. Reassessment orders were passed on 15-6-1985. So on the cut off date i.e. 29-7-1985 in the instant case there was in existence reassessment order against which an appeal was pending. Now the department is not prepared to concede that instant case is fully covered by Paragraph III(b) of Circular 9 of 1985 under the heading of cases of reopening of assessments. Explanation is put forward by the department that since in the instant case reassessment order was passed on 15-6-1985, which was earlier in point of time than cut off date i.e. 29-7-1985, hence reassessment order had attained finality and the case consequently came out of purview of paragraph III(b) and got covered by paragraph III(d) of Circular 9 of 1985, as the assessment was already finalised.

16. Now since in Circular 9 of 1985 word "assessment" is repeatedly used and not only that but six categories of cases are specified showing relative importance of different stages of "assessment" vis-a-vis claim of set off, it would be necessary and proper to see whether "assessment" has any legal definition. Word "assessment" is defined under section 2(vii) of Income Tax Ordinance 1979 as including reassessment and additional assessment and the cognate expressions to be construed accordingly. Circular 9 of 1985 clearly provides specifically separate category of cases of reopening of assessments, as contemplated under paragraph 3 (b) in which there is no mention of passing of order of reassessment, which shows that the intention is that these would be pending cases reopened for assessment at par with cases in Paragraph III(a). However, paragraph III(d) covers category of cases not entitled to the benefit of set off in which assessments had been finalised and pending appeals arising therefrom.

17. It is the language used in Paragraph 111(d) of Circular 9 of 1985, which requires detailed examination. What is meant by "assessments already finalised"? "Assessment" is defined in the Income Tax Ordinance 1979, as including reassessment and additional assessment, which shows that scope of assessment is wider and larger than its ordinary meaning. Word "finalized " is derived from the word final" is which as defined in the Chambers 20th Century Dictionary to mean "last, decisive, conclusive: respecting the end or motive of a judgment ready for execution-last of series". "Finality" is defined as state of being final, completeness or conclusiveness. In Black's Law Dictionary, Fifth Edition, word "Final" is defined as, "last; conclusive, decisive, definitive; terminated; completed". In its use in reference to legal actions this word is generally contrasted with "interlocutory". Viewed in the light of meanings of the words "assessments" and finalized", it appears that assessment orders as such do not have touch of finality unless all the forums are exhausted in which such orders can be challenged so that the order takes the shape of final decision.

18. Legally speaking order of assessment passed by Income Tax Officer is an order of original authority but is not final for the reason that it can be challenged in appeal or revision as the case may be and would be final only when it goes through all the forums and the finding of the last forum shall be binding as conclusive.

19. The question whether appeal and other remedies provided under the law formed part of the proceedings or not came up for consideration before the Supreme Court of India in the case of Garikapati Vecraya v. N. Subbiah Choudhry and others reported in PLD 1957 Supreme Court (Ind.) 448. It is held as per majority opinion that legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. Reference can be made to the case of Commissioner of Wealth Tax v. Vimlaben Vadilal Mehta reported in (1984) 145 ITR 11, in which it is held that it is well-settled that when an appeal is filed against an assessment order before the AAC, the assessment is thrown open and the Appellate proceeding constitutes a continuation of the assessment proceedings.

20. In the case of F.A. Khan v. The Government of Pakistan (PLD 1964 Supreme Court 520), question came up for consideration that in the case of dismissal of a government servant, for filling a declaratory suit whether limitation would start from the date of order of dismissal, to be reckoned under Article 120 of the Limitation Act or from the date of order of appellate authority confirming the first order to be reckoned under Article 58 of the Limitation Act. It is held that such right accrues on the date of dismissal, but, where there is an appeal, on the date of the appellate order upholding dismissal. It is further held that the legislature when it provides a hierarchy of tribunals for the determination of a dispute is really providing one complete procedure for such determination, proceedings before different tribunals being only steps in this procedure.

21. On the question of construction, in the light of what is stated above, it can be said without fear of contradiction that order passed in original proceedings is not final unless it crosses all the forums set up under that law in which it can be challenged and the order of the last forum would become final. Mr. Rehan Hassan Naqvi, learned counsel for the respondent has submitted before us that there is plethora of case-law on the point that even within the frame-work of Income Tax law, appeals and other remedies provided therein formed part of the same proceedings regarding assessment. In this context our attention is drawn to the case of Chatturam and others v. Commissioner of Income-tax, Bihar reported in (1947) 15 ITR 302. In the reported case assessees of partially excluded areas were served with notices under section 22(2) of the Income Tax Act for furnishing returns. Subsequently Governor of Bihar by Notification directed that India Income-tax (Amendment) Act, 1939, the Income-tax Law Amendment Act, 1940 should be deemed to have been applied to- the Chotanagpur Division containing partially excluded areas with retrospective effect. Subsequently Regulation I of 1941 was also issued by the Governor to remove doubts as to the retrospective applicability of the Acts mentioned in the Notification. Assessees were assessed and their appeals were pending when Regulation I of 1941 was issued. It was contended that assessment proceedings initiated and completed against them were invalid and neither the notification nor the regulation was competent in 'law to validate those proceedings. It was held by the Federal Court of India, inter alia, that appeals to the Appellate Assistant Commissioner were an integral part of the machinery of assessment and therefore it could not be contended that assessment proceedings were over when Regulation I of 1941 was made and the Regulation could not apply to the proceedings covered by those appeals.

22. Another case cited by Mr. Naqvi is R.K. Garg v. Union of India and others reported in 1982 Supreme Court Cases (Tax) 30, in which four writ petitions came up for hearing before the- Supreme Court of India in which was raised a common question of law relating to the constitutional validity of the Special Bearer Bonds (Immunities and Exemptions) Act, 1981 on the grounds, inter alia, that by immunities and exemptions in favour of black money holders it discriminated against honest taxpayers and therefore violated Article 14 of the Indian Constitution. It is not necessary to go in this case for the reason that in the instant case before us constitutionality or validity of set off as such is not challenged.

23. From what is stated above, it appears clearly that in the instant case paragraph 3(d) of Circular 9 of 1985 is not attracted and the case falls squarely under paragraph 3(b) because it is a case of reopening of assessment, Circular 9 of 1985 has been issued by Central Board of Revenue to clarify and explain legal implications arising from benefit of set off which is conferred upon assessee by addition of clause 172 in the Second Schedule to Income Tax Ordinance, 1979 which amendment was brought in force on 29-7-1985. On that date i.e. 29-7-1985, when this concession became available, in the instant case reassessment order had already been passed on 15-6-1985 against which appeal was filed which was pending. Bonds were purchased on 31-8-1985. Order in appeal was set aside on 6-12-1986. Hence the case was covered by paragraph 3(b) which is reserved for cases of reopening of assessments and certainly not paragraph 3(d) of Circular 9 of 1985, which is meant for cases in which assessments had been already finalised. This interpretation is also consistent with policy of the government to give incentive for changing of black money, into white money to be employed in the country for productive purposes.,

24. For the facts and reasons mentioned above, we find no infirmity or legal flaw in the impugned judgment which is hereby upheld and the appeal is dismissed.

M.BA./C-111/SAppeal dismissed.