ITA NO. 837/KB OF 1991-92,'DECIDED ON 28TH OCTOBER, 1992. VS I.T.A. NO.1441/HQ OF 1989-90, DECIDED ON 9TH OCTOBER, 1991.
1993 P T D (Trib.) 1196
[Income-tax Appellate Tribunal Pakistan]
Before Muhammad Mujibullah Siddiqui, Judicial Member and Manzurul Haque, Accountant Member
I.T.A. No.1441/HQ of 1989-90, decided on 09/10/1991.
Income Tax Ordinance (XXXI of 1979)---
----S. 59-B---C.B.R. Circular No.19 of 1988, dated 5-10-1988---C.B.R. Circular No.10 of 1988, dated 22-8-1988---Simplified Assessment Procedure Scheme (1988-89)---Original scheme did not contain any provision treating the successor of a registered firm as existing assessee---Subsequent clarification issued by C.B.R. being incompatible with both letter and spirit of the original scheme inasmuch as it introduced an extraneous matter therein, was not applicable in case of an assessee who had filed his return under the original scheme.
1990 PTD (Trib.) 988 fol.
1987 PTD (Trib.) 561 and 1990 PTD (Trib.) 19 ref.
Javed Zakaria for Appellant.
Nawal Rai N. Oad, D.R. for Respondent.
Date of hearing: 9th October, 1991.
ORDER
MUHAMMAD MUJIBULLAH SIDDIQUI (JUDICIAL MEMBER).---This appeal is directed against the order, dated 10-2-1990 by the learned C.I.T. (A ) in ITA No. 153/A-VI, pertaining to the assessment year 1988-89.
2. The appellant is an individual deriving income from business of selling pre-recorded audio cassette and other electronic items. The main objection raised by the appellant before us is that the learned two officers below were not justified in declining benefit of simplified assessment procedure scheme to the appellant.
3. Heard Mr. Javed Zakaria, Advocate for the appellant and Mr. Nawal Rai N. Oad, learned Representative for the Department. Mr. Javed Zakaria has submitted. that the appellant filed return under Simplified Assessment Procedure Scheme but the Assessing Officer excluded the return from the said scheme without assigning any reason by merely stating that the case did not qualify under simplified assessment procedure scheme. However, the learned CIT (A) has dealt with the issue at length and has held that the return did not qualify for simplified procedure because of the provisions of para. 3 of Circular No.19, dated 5-10-1988 which contains that where the partner of an existing firm takes over its business it would be the case of succession and that of an existing assessee if the last assessed income of the firm exceeded Rs. 1,00,000 the successor's case would fall outside the scope of simplified procedure. The learned counsel for the appellant has submitted that no such provision was contained in the original Simplified Assessment Procedure Scheme, announced by the Central Board of Revenue for the assessment year 1988-89, and, therefore, a subsequent disqualification would be deemed to be ultra vires and invalid. In support of his contention he has placed reliance on two judgments of this Tribunal reported as 1987 PTD (Trib.) 561 and 1990 PTD (Trib.) 19. The learned D.R. has supported the impugned finding of learned C.I.T.(A). The point in issue already stands decided in favour of assessee by a Division Bench of this Tribunal sitting at Islamabad vide judgment reported as (1990) PTD (Trib.) 988. In this reported judgment the paragraph 3 of C.B.R. Circular No.19 of 1988, dated 5-10-1988 has been specifically considered with reference to C.B.R. Circular No.10 of 1988, dated 22-8-1988. It has been held that the original scheme did not contain any provision treating the successor of a registered firm as existing assessee and subsequent clarification issued by the C.B.R. was incompatible with both the letter and spirit of the scheme inasmuch as it introduced an extraneous matter finding no place therein. It was ultimately held that the case of such an assessee qualified for being processed under the Simplified Assessment Procedure Scheme. We respectfully follow the decision cited above and consequently vacate the impugned orders of learned two officers below and direct the assessing officer to process the return filed by the appellant, under the Simplified Assessment Procedure Scheme for the assessment year 1988-89. The appeal is allowed accordingly.
M.BA./2413/TAppeal allowed.