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

----S. 66-A---Scope---Powers of Inspecting Assistant Commissioner under S.66-A---Extent---Inspecting Assistant Commissioner has no power to invoke S:66-A in those cases where assessment is made on agreement arrived at between the Income Tax Officer and assessee.

1988 PTD (Trib.) 222; 1988 PTD (Trib.) 965; PLD 1971 Kar. 305 and Qamaruzzaman and another v. State PLD 1981 Lah. 543 ref.

Nasim Sikandar, Judicial Member (Contra).

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

----S.66-A---History of S.66-A traced.

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

----Chap. VII---Agreed assessment, position at law---Practice of passing agreed assessment; acknowledged by Income-tax Authorities---Agreed assessment is not contemplated under any provision of the Ordinance or the Rules made -thereunder---Practice of passing agreed assessment orders is in vogue since long---Such practice was never objected to by superior Revenue Authorities or by Income Tax Appellate Tribunal---Instructions on the other hand had been issued by Central Board of Revenue from time to time providing guidelines to Income Tax Authorities to regulate agreed assessments.

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

----Chap. VII---Contract Act (IX of 1872), S.2(h)---Agreed assessment---Legal sanction---No provision exists in the Income Tax Ordinance, 1979 or Rules framed thereunder permitting agreed assessment---Legislative authority for levy of tax under an agreed assessment, however, comes from the Contract Act under which a valid and binding contract can be executed from which legal consequences would flow.

Dr. Ilyas Zafar for Appellant.

M. Arshad, D.R. for Respondent.

Date of hearing: 14th May, 1992.

ORDER

NASIM SIKANDAR (JUDICIAL MEMBER). J.---By way of this order, we propose to dispose of the following question: --

"Whether an IAC has power to invoke section 66-A in those cases where assessment is made on agreement arrived at between the ITO and the assessee? ....."

2. The facts of the case, though not very relevant for answering of the aforesaid question, are nevertheless, narrated in order to understand the background of the issue.

3. The present appellant, an unregistered firm, deriving income from installation and erection of projects as before, filed a return to declare net loss of Rs.3,51,p84 for the assessment year 1988-89. The assessing officer, while framing assessment under section 62 compared the results declared by the assessee with those of two immediate preceding years and also noticed the fact that for the assessment year 1987-88 the assessment was made on agreement basis at a net income of Rs.70,000. According to the assessment order, after discussion the assessee offered to be assessed at a net income of Rs.90,000 and this sum being reasonable, was accepted by the assessing officer. Consequently, an assessment on agreement basis was framed on 22-6-1989 at a net income of Rs.90,000. Subsequently, the concerned I.A.C. Range-1 Zone-A Lahore by way of an order dated 10-11-1959 cancelled the assessment with the directions to frame fresh assessment after application of proper G.P. rate and considering parallel cases in the light of the business of the assessee, allowing it admissible statutory allowances and verification of P&L expenses. Before making this order under section 66-A, the aforesaid authority, through a detailed order, came to the conclusion that it could invoke and exercise jurisdiction under section 66-A of the Income Tax Ordinance, 1979 in all cases where assessments were erroneous in so far as these were prejudicial to the interest of the revenue including those framed on agreement basis. The assessee-appellant challenged this order before this Tribunal on a number of legal as well as factual grounds. However, for the disposal of the question stated above, only ground No.3 is relevant which assails above said part of the finding of the IAC that the agreed assessment could be re-opened under section 66-A.

4. This Full Bench was constituted on the recommendation of a Division Bench of this Tribunal in view of a Single Bench decision of this Tribunal reported as 1989 PTD 907.

5. We have heard the parties. The contentions of the learned AR are exactly the same which he made orally as well as in writing before the learned IAC, more, particularly his reliance on the four reported cases of this Tribunal which were held to be inapplicable by the learned IAC in the impugned order. These cases are 1986 PTD (Trio.) 779, 1990 PTD (Trio.) 682, 1988 PTD (Trio.) 965 and 1989 PTD (Trio.) 907. Learned D.R. on the other hand has supported the impugned order on the grounds stated by the learned I.A.C. while revising the assessment order under section 66-A.

6. Before proceeding further, it would be worthwhile to have a cursory look on the provisions and history of section 66-A of the Income Tax Ordinance which is reproduced for facility of reference:---

"66-A. Powers of Inspecting Assistant Commissioner to revise Income Tax Officer's order.---The Inspecting Assistant Commissioner may call for and examine the record of any proceedings under this Ordinance, and if he considers that any order passed therein by the Income Tax Officer is erroneous in so far as it is prejudicial to the interests of revenue, he may, after giving the assessee an opportunity of being heard and after making, or causing to be made, such enquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment to be made.

2(1-A) The provisions of subsection (1) shall, in like manner, apply--

(a) where an appeal has been filed under sections 129, 134 and 137, or a reference has been made under section 136, against an order passed by the Income Tax Officer; and

(b) where an appeal or reference referred to in clause (a) has been decided, in respect of any point or issue which was not the subject matter of such appeal or reference.

(2) No order under subsection (1) shall be made after the expiry of four years from the date of the order sought to be revised."

This section which is titled "Power of Inspecting Assistant Commissioner to revise ITO's orders" was inserted in the Income Tax Ordinance by the Finance Ordinance, 1980. Obviously this section and the power conferred on the Inspecting Assistant Commissioner thereunder was not available in the Income Tax Ordinance, 1979 as promulgated on 30th June, 1979. The legislature in its wisdom did not consider it fit to include this provision which was available as section 34-A in the Income Tax Act of 1922. It may also be noted that section 34-A was inserted in the said Act by Finance Ordinance, 1959 and, therefore, was not originally a part of the Act of 1922. At the time of its introduction in the Act, CBR issued Circular No.9 of 1.959 dated 15th of April 1959 to explain the nature of the new provision. The powers of the Inspecting Assistant Commissioner to revise Income Tax Officer's orders remained out of currency for a period of one year from the enforcement of the Income Tax Ordinance, 1979 till section 66-A was introduced by the Finance Ordinance, 1980. Barring this one year, the power of Inspecting Assistant Commissioner in this respect remained intact from the year 1959 when it was conferred in Pakistan by the said amendment in the Act. In India, however, this provision found its way into the Act as early as 1948 as section 33-B. It hardly admits of any doubt that section 34-A in the Repealed Act and section 66-A in the present Ordinance were introduced in order to forestall any fraud upon Revenue and to protect the interest of the Revenue in cases of orders passed by the assessing officers which were otherwise not appealable by the Revenue. A comparable provision as section 263 also exists in the latest Indian Income Tax Act of 1961 where the power to revise as contemplated has been given to the Commissioner Income Tax.

7. The above-cited eases relied upon by the assessee/appellant give a fair view of the opinion of this Tribunal expressed so far in this regard. In the first reported case cited as (1964) 9 Tax 15 (Trib.) a Division Bench of this Tribunal held that an agreed assessment made with the consent of the assessee and his authorised representative as regards quantum of sales, income and profit rate was proper. In the second case reported as 1986 PTD (Trib.) 779, Full Bench of this Tribunal held that the assessment made with the consent of an assessee, as regards the quantum of income was sustainable. In the third case reported as (1988) PTD 965 (Trib.), this Tribunal held an agreed assessment to be binding on both of the parties. And, in the last case reported as (1989) PTD (Trib.) 907, a Single Bench of this Tribunal held that agreed assessment bound both the parties, the assessee as well as the department. The last paragraph of this order being most relevant to the question under discussion is reproduced as under: --

"An agreed assessment binds both the parties, the assessee as well as the department. If the assessee is debarred from filing an appeal against the agreed assessment, the department should also consider itself bound by the agreement. On this principle the department cannot, therefore, be allowed to reopen the agreed assessment:"

In the course of this judgment the learned Single Bench of this Tribunal further observed that: --

"Even otherwise, if the agreed assessment is allowed to be reopened under section 66-A, it would not be in the interest of the department either. If such a view is allowed to be taken that would amount to create a distrust in the assessee's mind and no body will come forward to make an agreed assessment."

8. It would be seen that the first three reported cases of this Tribunal affirmed the act of entering into an agreement and therefore the practice of assessments by agreement was adopted. Another case of the Tribunal with somewhat similar findings has also been reported as 1990 PTD (Trib.) 694. In this case a Division Bench of the Tribunal quoted with favour a case of Indian jurisdiction reported as (1964) 9 Tax 147 in re: Seth Gujar Modi and others v. Commissioner of Income Tax Uttar Paradesh and another. A part of the judgment in the abovesaid case was quoted and underlined to place emphasis which reads as under:--

"Such a settlement was of a contractual nature. It was a voluntary one which had the effect of completely bypassing the normal procedure provided in the Income Tax Act for assessment, levy of penalty and the rates at which the income was to be assessed under the relevant Finance Act. By agreement the parties could fix not only the quantum of the escaped income but also the rate at which the tax was to be levied and also whether penalty would be exigible or not."

However, in none of these cases an express question as to the competency of the IAC to reopen under section 66-A on agreed assessment ever arose. The only case reported as 1989 PTD 907 is the one which specifically deals with the question now under determination before us.

At the very outset it is pointed out that an agreed assessment is not contemplated under any provision of the Ordinance or the rules made thereunder. There is also no doubt that this practice which is in vogue since long has never been objected to either by this Tribunal or by the superior D authorities in the Revenue. The above-cited cases inter alia, bear witness to the fact that this Tribunal has never raised an eyebrow on the following of this practice which enjoyed similar favour from the Revenue. A number of circulars were issued by CBR in this regard which include Circular No. 17 of 1979 dated 23-12-1979, Circular No. 15 of 1989, Circular No. 12 of 1990 dated 20-12-1990 etc. Besides, instructions were issued from time to time to regulate agreed assessments and providing guidelines to the Revenue officers. Most important of these guidelines appears to be one contained in Circular No.17 of 1990 wherein it was desired that in a case where evidence of clear and definite concealment was available, assessment should not be made on agreement basis. Without going into the validity of these circulars, it is submitted that an agreed assessment still remains a matter of practice only and does not have any support from any provisions of the Ordinance as rightly pointed out in the case reported as 1986 PTD (Trib.) 779. Also, it was held in the other reported case viz. 1988 PTD (Trib.) 965 that an agreed assessment suited both the assessee as well as the department and that an agreed assessment was made on give and take basis. Therefore, it is clear that this is an established practice in spite of there being no mention of it in the income Tax Ordinance. The legality of the practice was examined by a Division Bench of .the Lahore High Court in two recently decided cases. The first one in Tax References Nos.l to 3 of 1989 decided on 29-1-1989, in re: Tanveer Brothers Oil Dealers v. The CIT (reported as 1990 PTD 383), and in Writ Petition No. 6981 of 1989, decided on 23-4-1990 (reported as 1990 PTD 903). In the earlier case while deciding the reference the learned Judges observed:--

"....In the Ordinance there is no room for an agreed assessment and the Income Tax Officer had to assess the petitioner's total income on the strength of the material on the record and such other evidence on specific points as required by him. If the Income Tax Officer chooses to follow a manner of assessment extraneous to the Ordinance he could well voluntarily impose on himself the condition as to the Commissioner's approval of such an assessment. It is clear to us that the assessing officer did not finalise the agreed assessment and the approval of the Commissioner of Income Tax was the condition precedent for such acceptance. The approval for agreed assessment forwarded by the respondent to the Commissioner, therefore, did not confer any right on the petitioner."

In the latter reported case the same learned Division Bench expressly disapproved the practice of agreed assessment where material for higher assessment was available and quashed the agreed assessment in question by observing: --

" ....In this view of the matter the agreed assessment does not fit into the broad contours of the Ordinance. The assessment has to be made by the assessing officer on the foundation of the material before him. If the assessee's books of account, his bank account or other evidence produced by him or mustered by the Income Tax Officer, warrnat a higher assessment, the Income Tax Officer cannot ignore that evidence and go ahead for an agreed assessment. However, the position would be different if there is no material at all and the assessee agrees to be assessed at a particular figure. In such an eventuality the assessee's admission constitutes evidence, and may be acted upon by the Income Tax Officer. It may be added that the Income Tax Officer is a quasi-judicial Tribunal and is required to pass a speaking order manifesting application of mind for resolution of the controversy before him. He must give reasons in support of his order which could be adequate and informative so that if the order is called in question before a higher forum, the latter can appreciate ands evaluate the process by which the decision was reached..."

Reading this judgment and Circular No.17 of 1990 together will make it abundantly clear that an agreed assessment could only be framed in the circumstances as laid down by their Lordships and in that eventuality it would only be a piece of evidence and nothing more. Mere acceptance of an admission by the assessing officer, therefore could hardly be considered as a bar against exercise of revisional powers of IAC as conferred under section 66-A of the Ordinance.

10. Be that as it may, the practice does provide a convenience for the assessee as well as the revenue, and therefore, its persistency. However, I am not ready to accept the proposition that an agreed assessment is exactly at par with any other contractual obligation between two citizens. A voluntary entering into an agreement of two sui jaris cannot be equated with that of an assessee a person at a little disadvantageous position of being a tax-payer whose declared income is not free from turbidity and the ITO .only representing the revenue and not himself being the Revenue. An assessee can never enter into an agreement to be taxed or not to be taxed. He enters into an agreement only to the quantum of tax to be paid and nothing more. On the other hand, the assessing officer only represents the revenue and is certainly under the disabilities prescribed not only by Income Tax Ordinance but also under various other legislations being usually a civil servant. Comparisons usually being arduous, it is not safe to always go for borrowing legal phrases to understand a relationship or an arrangement. For, a number of understandings are made by individuals every day but without any intention of making them a regular contract or an agreement as we understand it in the domain of law. In a case reported as PLD 1971 Karachi 305, S. Salim Ahmed v. Caltex Oil Pakistan Limited, a Single Bench of the Karachi High Court observed:---

" ....Not every offer that is accepted becomes a binding contract under law, otherwise every host, who cancels an invitation for dinner which has been accepted by his guests, would be confronted by claims for damages for cancelling his offer for a dinner. In all systems of jurisprudence the law has drawn a distinction between promises which are and those which are not intended to create legal relations, and so the Contract Act has drawn a distinction between promises simpliciter and promises which are agreements enforceable at law."

Therefore, the view that a forbearance on the part of the Revenue Officer, to do or to abstain from doing anything with a view to obtaining the assent of that other to that act or abstinance from prosecuting or imposing heavy penalty constituted sufficient consideration, needs further consideration. Ordinarily law may not favour such a reciprocal promise between individuals on the ground of its being in the nature of making a trade of a felony except for those expressly permitted by law itself. In the Income Tax Ordinance, such like arrangements are provided for under sections 126 and 128 with clear parametres of the authority and the nature of promises it may hold out. A collusive agreed assessment is manifestly against public policy. And, in cases where the assessing officer frames agreed assessment apparently in the interest of the revenue but the assessee is acting in a colourful manner in order to save higher amount of concealed income, the so-called agreement would otherwise be tainted with fraud and misrepresentation as one of the parties (assessing officer) did not agree upon the same thing and in the same sense; the assessing officer being unaware of the hidden benefit that the assessee may have been trying to derive out the agreed assessment. The views already expressed by this Tribunal by way of the aforesaid reported cases more particularly the one reported as 1989 PTD 907 would provide blanket protection to an agreed assessment which is neither the policy of law nor in the interest of the Revenue. A counter argument in this regard could be that in a case of undue advantage out of an agreed assessment, the assessing officer could always invoke and resort to proceedings under section 65 of the Ordinance. However, this argument will not apply to a situation where the agreed assessment is collusive. Even otherwise, this interpretation would militate against the raison d'etre of section 66-A introduced for the purpose of providing the higher revenue authorities with an opportunity to revise an assessment in the given circumstances which they were not competent to do before the introduction of this section. An interpretation of section 66-A in favour of the revenue, therefore, is all the more necessary as to hold otherwise would amount to advance mischief and defeat the purpose behind the introduction of section 66 A. It is one of the settled propositions of interpretation of Taxing Statutes that they shall be interpreted in a way to prevent fraud upon revenue. In fact every legislative measure to impose tax attempts to visit every possible avenue of pilferage in no less decisive manner. The wisdom of cherished legal proposition that an agreement between two parties cannot either vest or divest a Court or authority of its jurisdiction, hardly needs emphasis. In a case reported as 6 ITC 286 re: Allahabad Milling Co., v. Commissioner of Income Tax, U.P. it was held that agreement between tax-payer and revenue authorities against statutory provisions would not be binding. Likewise, in another case reported as (1968) 10 Tax 105, it was held that an assessment by agreement cannot confer jurisdiction and, therefore, an assessment by an incompetent authority was void. In this case, this Tribunal refused to extend validity even to an agreed assessment where the assessing officer framing the assessment was not competent in terms of local jurisdiction. As observed earlier, agreed assessments are a matter of mere practice. On the other hand powers vested under the IAC being creation of statute cannot be overridden by a mere practice even if it has the blessings of the superior Revenue authorities or this Tribunal. To hold it otherwise would render section 66-A as redundant in all cases of agreed assessments and presumption of redundancy in respect of an express provision of law cannot be accepted in a light vein. The legislature is presumed not only to know the law but also the practice. Therefore, to hold that the enforcement of the powers under section 66-A would make the assessee shy to come forward to enter into an agreed assessment would amount to attributing ignorance to the legislature.

11. The theory is that against the operation of a statute there can be no estoppel. It is submitted that the principles of promissory estoppel cannot be pressed into service in the situation under discussion either. This principle is being followed religiously by the superior Courts in India. Reference in this regard can be made to the leading judgment of the Indian Supreme Court in re: M.P. Sugar Mills cited as AIR 1979 SC 621. However, the findings of the superior Courts in Pakistan are to the contrary and to the effect that executive authority in the exercise of rule-making power to amend, vary or rescind and earlier order cannot take away the rights vested in the citizens by law. A number of cases on the topic of promissory estoppel were examined by a Single Bench of the Lahore High Court in Writ Petitions Nos. 4449, 4503, 4504, 4505, 4754 and 4790 of 1987 re: Nishat Mills Ltd. v. Government of Pakistan (Six petitions), decided on 29-2-1988. These include PLD 1965 Pesh. 47; PLD 1970 SC 439; PLD 1978 Lah. 468; (1986) SCMR 916 and PTCL 1987 CL 99. In all these reported cases certain Government Notifications by the authorities issued in exercise of the delegated powers under various taxing statutes were examined by the superior Courts and it was held that where a person had acted upon the representation, the Federal Government or the authorities were bound by the principles of promissory estoppel and therefore, could not retrospectively destroy the vested right. In the proposition before us no vested right is ever created in fav6ur of an assessee-appellant nor any fresh instrument is issued to take away retrospectively any right, benefit or privilege enjoyed by the assessee appellant. The assessee appellant, by agreeing to be assessed at a certain amount does not enjoy a right of privilege which is vested in him under law. His admission to be assessed at a certain amount cannot be allowed to be taken benefit of by himself subsequently to save him from the revisional jurisdiction expressly conferred under law upon higher revenue authorities. Therefore, when an assessee agrees to be assessed at a certain sum of money, he can safely be presumed to be conscious of the powers of the Inspecting Assistant Commissioner conferred under section 66-A of the Ordinance. This being so, he cannot be allowed to agitate against the same where the conditions precedent as contemplated under section 66-A are present for the exercise of the revisional jurisdiction.

12. While examining the nature of powers conferred on the Inspecting Assistant Commissioner to revise income Tax Officer's order under section 66-A the use of words "any proceeding under this Ordinance" and "any order passed therein by the Income Tax Officer" requires special attention. By using these words the legislature clearly intended to expand the scope of powers to every proceedings as also to every order passed by the assessing officer if the conditions as contemplated in the section prevail. We are also very clear in our mind that an assessment remains an assessment even if it is framed with the consent of the assessee just like an assessment framed without the consent or in the absence of an assessee. In a case reported as 1980 PTD (Trib.) 839, the- word "any" used in section 66-A of the Ordinance was held to be exhaustive in its implication covering all orders passed by Income Tax Officers. In this case this Tribunal referred to its earlier judgment reported as 1980 PTD (Trib.) 28 wherein it was held that the powers of the Inspecting Assistant Commissioner to call for the record of any case under section 34-A of the Act of 1922 (a provision comparable to section 66-A of the Ordinance) were not confined only to cases where the orders passed were prejudicial to the interest of revenue alone but included the powers to call for the record of any proceedings under the Act including order for dropping of proceedings. To oust the agreed assessments from the purview of the powers conferred on Inspecting Assistant Commissioner under section 66-A as submitted earlier would amount to declaring the provision as redundant qua agreed assessments. Such an interpretation is certainly violative of the rules of interpretation of statutes. In 1985 PTD (Trib.) 255 this Tribunal held that no provision could be interpreted in such a manner which would make part of law redundant. The golden rule of interpretation being to assign every word of the statute its natural and literal meaning, it is only in case of ambiguity that a need for interpreting the statutes really arises. In this case the words of the statute are absolutely clear and these do not admit of any exclusion of a proceedings or an order of the assessing officer with regard to its nature. The Federal Court of Pakistan in a case reported as PLD 1958 FC 220 relied upon AIR 1940 PC 124 to confirm that a construction which carries into effect the object of the statute is to be preferred. The object -of the section under discussion as submitted earlier, without any iota of doubt is to protect the interest of the revenue and to forestall its evasion. A plain reading of section 66-A makes it vividly clear that legislature did not intend any curb on the powers of IAC in the eventualities stated in. the section. The words of the statute being dear, due effect shall have to be given to them as per ratio of the case reported as PLD 1989 SC 232 re: Yousuf Re-Rolling Mills and others v. Collector of Customs and others wherein their Lordships held that taxing statutes should neither be stretched in favour of the State nor be narrowed in the favour of a tax-payer. Therefore, any order or proceedings that came within the mischief of the words "erroneous in so far as it is prejudicial to the interest of revenue" is liable to be re-opened without any exception except for the time limit provided in subsection (2). Their Lordships of the Sindh High Court Karachi while examining the scope and application of section 66-A in Constitutional Petitions Nos. D-343 and 344 of 1987, decided on 22nd May, 1988 re: Shahab-ud-Din v. IAC Range I, Karachi 1988 PTD 723 observed that "these are vast powers conferred on the IAC for interfering with the assessment framed by the ITO. The limitations placed under law are that the order should have been passed by the ITO and ought to be erroneous adversely affecting the interest of revenue". In this order a portion of the judgment of a case reported as PLD 1976 Lahore 547 re: Commissioner of Income Tax v. M. Iqbal Saigal was reproduced which reads as under:

" ....On a plain reading of section 34-A of the Act (now section 66-A of the Income Tax Ordinance) there is no express bar imposed on the powers of Inspecting Assistant Commissioner that he cannot interfere unless the mistake in the order under revision is apparent from the record. Indeed under this section he is vested with a very wide power to call for and examine any proceeding under the Act. After examination of the record if he considers that any order passed therein by the income Tax Officer is erroneous in so far as it is prejudicial to the interest of revenue, he may take cognisance of the case in revision. By all means in the course of his inquiry he can even go beyond the record if he finds to be necessary so to do ."

13. Lastly, the question needs to be viewed from another angle. If an agreed assessment is held immune from the revisional jurisdiction of the IAC as conferred under section 66-A, the departmental authorities will be deprived of a statutory responsibility/authority of overseeing the working of the functionaries while holding otherwise may not prejudice the interests of the assessee who could approach this Tribunal in appeal within the parameters of section 134 in case of arbitrary and illegal use of the powers vested under section 66-A.

14. In the face of this discussion, we will respectfully differ with the Single Bench findings cited as 1989 PTD (Trib.) 907 and, therefore, will answer the question in the affirmative by holding that an IAC is possessed with the power to invoke section 66-A in those cases where assessment is made on agreement arrived at between the Income Tax Officer and the assessee.

FARHAT ALI KHAN, (CHAIRMAN).---I have the advantage of going through the order proposed by my learned brother the Judicial Member. Frankly speaking, I went through it several times but regretfully could not persuade myself to concur with my learned brother.

2. From perusal of the proposed order it is clear that agreed assessment orders have been acted upon for more than quarter century and the hierarchy of administration of tax justice has also put its seal of approval thereon. The learned Judicial Member has himself cited cases from both Indian and Pakistani jurisdiction from the year as far back as 1964 together with several Circulars of C.B.R. from which the recognition of agreed assessment is indisputably established. Nevertheless, my learned brother, the Judicial Member appears to be of the view that an agreed assessment amounts to "a trade of a felony" as it was not expressly permitted by law. The learned Judicial Member disapproves the agreed assessment apparently for the following reasons:

(1) because he is "not ready to accept the proposition that the agreed assessment exactly is at par with any other contractual obligation between two citizens;"

(2) because an assessee is "at a little disadvantageous position of being tax-payer whose declared income is not free from turbidity;"

(3) because the ITO only represents "the revenue" and is not himself "the Revenue";

(4) because in some races the assessee and the assessing officer may not be ad idem while arriving at agreed assessment for the reason that the "so-called agreement" may be "tainted with fraud and misrepresentation" perpetrated by an assessee and the "assessing officer being unaware of the hidden benefit that the assessee may have been trying to derive out of the agreed assessment",

(5) because "an agreed assessment...is neither the policy of law nor in the interest of Revenue for the simple reason that no provision for it exists in the Income Tax Ordinance;"

(6) because the case-law in Pakistan was against it.

3. The learned Judicial Member has then dealt with the powers of an Inspecting Assistant Commissioner, hereinafter referred to as IAC. However, I start with the objections raised by learned Judicial Member against the agreed assessment orders. Now, Article 77 of the Constitution of Islamic Republic of Pakistan lays down that no tax shall be levied " for the purposes of the Federation except by or under the authority of Act of Parliament. Admittedly, there is no provision in Income Tax Ordinance for agreed assessments namely for levying tax in agreement with an assessee. The first and foremost question, therefore, which attracts our attention is as to whether the levy of tax by agreed assessment is legal and my reply to it is in an emphatic yes. In my humble opinion, if an agreed assessment is held to be illegal, its first casualty would be the Doctrine of Finality which is the hall-mark of all types of tax assessment proceedings. In other words, the vested rights of the Department and the assessee would stand dissolved in self-created fog of uncertainty which in turn lead to chaos and confusion. As such, it would have been more prudent to call an agreed assessment legal. After all not only the superior Courts but also the assessees and the Department have been acting upon them. They must, therefore, be fortified by some legislative authority.

4. The next question which arises from this discussion is as to where to find such Legislative authority when there is no express provision for it in the Income Tax Ordinance, 1979. My learned brother the Judicial Member, however, does not like to look elsewhere. He has referred to sections 126 and 128 of the Income Tax Ordinance in which the legislature has laid down "clear parameters of the authority and the nature of promises" which may be acted upon to conclude that agreed assessment orders are not permissible under income Tax Ordinance though he has not said so in so many words. However, with profound respect for my learned brother, I am not prepared to compare an agreed assessment with power of compounding offences or power to tender immunity from prosecution which has been laid down under sections 126 and 128. Those powers were specifically required because they deal with, to put in the words of my learned brother, "a trade of a felony". Whenever a person commits an offence, be it a felony or misdemeanor, he is generally to be charge-sheeted and tried for it. However, the legislature in its wisdom has laid down in Chapter XII of the Income Tax Ordinance not only the procedure for institution of the prosecution but has also defined the offences for which a tax payer can be prosecuted. Since prosecution is to be initiated with the sanction of C.B.R. under section 125, the introduction of sections 126 and 128 became necessary. On the other hand, agreed assessment deals with tax liability which an assessee wants to be created so as to purchase a peace of mind while an assessing officer desires it for expediting tax collection. Thus, the learned Judicial Member does not seem to have compared like with like. In my humble opinion, since there existed not only a plethora of case-law but C.B.R. had also issued Circular No.17 of 1990 on 20-12-1990 regarding agreed assessments, the learned Judicial Member should have looked for prohibition against and not provision for it in the Income Tax Ordinance.

5. Be it as it may, in my humble opinion, the legislative authority for levy of tax under an agreed assessment comes from the Contract Act under which a valid and binding contract can be executed from which legal consequences flow. When I read the provisions of Contract Act, I find in it not only the ingredients of a valid contract but also the factors, which render the contracts void of avoidable. With profound respect for my learned brother, I do not find anything in it, which may support the conclusion of my learned brother that agreed assessment cannot be equated with any other contract entered into by two or more sui juris persons. If one of the parties to the contract is in dominating position and obtains the contract either under coercion or by exercise of undue influence, it is avoidable contract, which the other party can legally avoid if coercion or undue influence is proved. I am not aware of any provision of law which prohibits a person who, according to my learned brother, is "at a little disadvantageous position", to enter into a legal and binding contract. Let me also observe at this stage that in assessment proceedings, an I.T.O. is of course in a dominating position but it cannot be said that an assessee is in "a little disadvantageous position" for the simple reason that all the facts necessary for assessment of his income are within his personal knowledge and he may disclose all or any of them at his option whereas the assessing officer is left to jump into the darkness.

6. The next objection of my learned brother against the agreed assessment is that since an assessing officer does not represent the Revenue, he cannot bind it and consequently is not competent to enter into a contract for and on behalf of the Revenue. But with profound respect to my learned brother, I do not find any basis for it in law. Section 5 of the Income Tax Ordinance mentions various authorities created under the Income Tax Ordinance and assessing officer is one of them. Section 7 of the Income Tax Ordinance lays down that an I.T.O. may be assisted, guided or instructed by any other income tax authority he is subordinate to or any other person authorised in this behalf by the C.B.R. Thus, the assistance, guidance or instructions of his Inspecting Assistant Commissioner or Commissioner of Income Tax are available to him under this section. Moreover, section 8 of the Income Tax Ordinance specifically mentions that all the officers exercising their jurisdictions under Income Tax Ordinance are bound to follow the orders, instructions and directions of C.B.R. If various circulars mentioned by my learned brother are read with these sections it becomes abundantly clear that the "Revenue" is well represented by an assessing officer when he enters into-an agreed assessment with an assessee. Furthermore, let me also mention here that as far as an assessee is concerned, the assessing officer is the sole representative of the `Revenue'. When he negotiates an agreed assessment with him, it is not necessary for an assessee to find out as to whether the assessing officer is duly authorised by C.B.R. to do so. If he enters into an agreed assessment with an assessing officer, he does so with an authority under the Income Tax Ordinance who is ostensibly competent to do so not under the provisions of Income Tax Ordinance but also under various circulars issued from time to time by C.B.R. I would revert to this aspect in some, details subsequently but before parting with this point, let me observe that an agreed assessment also can be, like any other contract, void or voidable: Since agreed assessments are permissible and since the I.T.O. is in dominating position, the concept of consideration as contained in section 2(d) of the Contract Act has been introduced for the benefit of an assessee. (Please see (1988) PTD (Trib.) 222, 1988 PTD (Trib.) 965. Unfortunately, my learned brother has not fully appreciated the implications of his observation made in para. 10 of his order that requirement of sufficient consideration requires reconsideration. The learned Judicial Member has fortified his observation by remarks made in PLD 1971 Karachi 305. But with due respect to him I am unable to find any support in it for the conclusion of my learned brother. His Lordship has distinguished legal relationship with social commitment. But agreed assessment cannot be equated with accepted offer of a dinner. As I have pointed .out, earlier, when agreed assessment is entered into, it culminates in legal relationship of debtor and creditor. If an assessee fails to discharge his tax liability; the Tax Recovery Officers have been given all powers of arrest, detention, attachment and sale of movable arid immovable property. It can; however, be avoided like any other contract on any ground available under the Contract Act and lack of consideration is one of them. This Tribunal has applied it successfully whenever it was found that the I.T.O. had nothing to give to an assessee in return for his acceptance of tax liability. In fact these decisions nipped in the bud the most contagious disease of collecting easy revenue with the help of the devise of agreed assessments. While sitting at the apex of the hierarchy of the administration of tax justice, this Tribunal noticed the growing tendency in the assessing officers of taking resort to agreed assessment. Although C.B.R. Circular No. 17 of 1979 dated 23-12-1979 specifically involved Inspecting Assistant Commissioners and Commissioners of Income Tax in framing of the agreed assessment yet the compulsion of reaching the target of specified revenue collection had to reign supreme. This Tribunal therefore; was called upon to check this ever spreading malady and it was effectively checked. When agreed assessment orders obtained in exercise of the dominating position were set aside one after another, the C.B.R. felt constrained to issue Circular No.15 of 1989 and thus agreed assessment procedure was given away. But it Was re-introduced with more elaborate procedure contained in C.B.R. Circular No.17 of 1990, dated 20-12-1990.

7. The next objection of my learned brother against agreed assessment is that since an assessing officer does not know all the facts which an assessee knows, therefore, there cannot be an agreed assessment. My learned brother has also objected to the agreed assessment on the ground that it was against policy of law. But with profound respect, let me point out that C.B.R. circulars effectively meet both the objections of my learned brother and I will revert to them subsequently. However, at the moment, let me mention that the policy of law regarding agreed assessment orders is to be laid down by C.B.R. and if they do so, as they have done, we cannot annul it unless we find it contrary to any law. It is important to note that the C.B.R. have laid down guidelines for assessing officers which they have to follow when they are entering into an agreed assessment with any assessee. Surely they are binding on them under section 8 of the Income Tax Ordinance. Thus, both the objections appear to be without any legs to stand upon.

8. Let me point out that the policy regarding tax collection and the Revenue interests are the issues which fall exclusively within the domain of C.B.R. The purpose of their creation is to generate revenue under the authority of Federal Legislature. On the other band, this Tribunal has been created to ensure that the revenue is generated strictly in accordance with late'. How the revenue should be generated and what should be the tax policy are two main issues which are to be squarely and exclusively handled by them. On the contrary, the main task of this Tribunal is to ensure that a citizen is taxed strictly within four corners of law and under legislative authority. I, therefore, with due respect to my learned brother, am of the view that while observing that an agreed assessment is neither the policy of law nor in the interest of Revenue, he has dragged, though inadvertently, this Tribunal directly in an arena of conflict. My learned brother has mentioned Circular No.17 of 1979 dated 23rd December, 1979 in his proposed order. Had he gone through its para. 5, I think that perhaps he would not have raised objections to the agreed assessments as he did. Since it is very relevant, I therefore, reproduce it as under:

"(5) Since agreed assessments ensure prompt collection of tax, assessments by agreement may be made in genuine case especially when Department is unable to muster proof of concealment despite gross under-declaration of income. The agreements should be approved by the I.A:Cs. or C.I.Ts. according to income limitation as already prescribed.

Brief facts and the circumstances leading to agreement may be typed on the order sheet and should be signed by the assessee, ITO and IAC or in cases involving income exceeding Rs.l lac by ITO, IAC, CIT and the assessee. Where agreed assessment is not possible, but the accounts are effective and can be rejected, the old method of estimate of sales, and application of G.P. rate should not be followed. Instead lump-sum additions should be made in different accounts due to defects therein. The quantum of such additions must however be justified and substantiated.

It is hoped that maximum efforts will be made to detect concealments in cases for scrutiny. Their number being small the officers will have enough time for a thorough probe."

However, C.B.R. in their wisdom decided to discontinue the agreed assessment procedure and such direction was obtained in Circular No.15 of 1989 dated 13th November, 1989. It is as follows.

CIRCULAR N0.15 OF 1989 (INCOME TAX)

"SUBJECT: AGREED ASSESSMENTS

The Central Board of Revenue has decided, that henceforth no assessment shall be made on "agreed basis."

(2) All earlier instructions on the subject contrary to the above decision stand withdrawn."

But within a period of about a year, C.B.R. faced difficulties in revenue collection and on 20th December, 1990, issued Circular No.17 of 1990 whereby they reverted to the agreed assessment procedure. It reads as under: --

Islamabad, the 20th December, 1990 -

CIRCULAR N0.17 OF 1990 (INCOME TAX)

SUBJECT: AGREED ASSESSMENTS

Generally the assessment of income by the Department, in case it is substantially higher than the income returned, is disputed by the tax payers in appeal. Recovery of demand thus becomes difficult if not altogether impossible. Similarly, in some cases concealment is detected but it cannot be established in black and white for one reason or the other. Recovery of enhanced demand in such cases becomes possible only if the Department does not press the penal provisions.

(2) In all such cases unnecessary disputes can be avoided and prompt collection of tax ensured through the system of "agreed assessment." It was because of these considerations that agreed assessments were permitted and instructions in this regard were issued vide Circular No.17 of 1979, dated 23-12-1979.

(3) Over a period of time however the assessing officer developed a tendency to resort to this procedure even in cases where proof of concealment of income was available on record. This circumventing of instructions on the subject led the Board to discontinue the practice through Circular No.15 of 1989.

(4) Various representations have since been received, both from tax payers and tax advisers that the system be reintroduced as it obviously leads to quicker decisions, early collection and fewer disputed assessments. In view of the following, the Board has reviewed the situation and decided to allow making of "agreed assessment", subject to the following conditions:--

(i) In case where there is evidence of clear and definite concealment, assessment should not be made on agreement basis.

(ii) Order should be approved by the IAC in cases of income up to Rs.2,00,000 (Rupees two lacs) and by Commissioner if it is more;

(iii) The entire payment of tax should be secured before the agreement;

(iv) The assessing officer should discuss the facts of the case and incorporate a comprehensive footnote to the assessment order showing the computation of income agreed upon;

(v) Brief facts and circumstances leading to the agreement should be typed on the order sheet and should be signed by the assessee, I.T.O. and IA.C. or in cases involving income exceeding Rs.2,00,000 by I.T.O., I.A.C., C.I.T. and the assessee;

(vi) Before making agreed assessments internal and external sources of information should be utilized to the maximum possible extent."

9. Thus, agreed assessments have been reintroduced as a policy of tax laws by C.B.R. and that too for the purpose of early collection of taxes. This Tribunal, therefore, must not and cannot assume the responsibility of declaring this circular against the so-called policy of law particularly when there is nothing in the Income Tax Ordinance to prohibit the C.B.R. from issuing such circular. We also cannot step into shoes of C.B.R. by expressing our apprehension for loss of revenue as our learned brother has proposed to do.

10. The last objection of my learned' brother against the agreed assessment is based on two cases of Tanveer Brothers and Afzal Construction (supra) but with due respect, both of them are distinguishable for the simple reason that none of them prohibits framing of the agreed assessment orders. As far as Tanveer Brothers (supra) is concerned, it appears that in that case, the offer of the assessee to be assessed at a particular income was accepted by the Income Tax Officer subject to the condition of approval of the offer by hi: Commissioner of Income Tax which was not obtained. The contention of the assessee was that the condition of approval of C.I.T. was not legal as such an enforceable contract came into existence. Their Lordships, however, came to the conclusion that the conditional acceptance of the offer did not make the agreed assessment a valid and enforceable contract. In other words, by implication, it has been held that the contract would have been completed and enforceable had the Commissioner agreed to it. Thus, this decision does not prohibit and rather it supports it. Now as far as the case of Afzal Construction (supra) is concerned it appears that in this case; the assessment order was framed on the basis of an alleged agreement: The assessee, however, challenged it in revision before C.I.T. on the ground that when he had produced all the material before the I.T.O., he should have framed assessment order according to law. In other words, the alleged agreed assessment was brought in dispute on the ground that his authorised representative had no power of entering into an agreement with the assessing officer. It was in this context that their Lordships came to the conclusion that in those cases where the account books and all other relevant material was produced before the I.T.O., he is supposed to frame assessment order accordingly. However, their Lordships distinguished the case of the assessee who, without producing any material before the I.T.O., offered to be assessed on agreement basis. Their Lordships held that such offer amounted to an admission and an assessing officer may act upon it taking it to be a piece of evidence. But in any case, the agreed assessment has been conceded by their Lordships with the condition that the I.T.O. should record a speaking order. This Tribunal, however, has gone a step further in overcoming the problem of an alleged agreed assessment and in my humble opinion, the decisions of this Tribunal on this subject are not in conflict with these two decisions of Lahore High Court. Although I have already discussed at length the legal position of agreed assessments yet I am tempted to mention here even at the cost of repetition that benefit of an agreed assessment cannot be denied to an assessee as it is not prohibited by any provision of law. Suppose an assessee produced all his account books before the I.T.O. who, while scrutinizing them, discovered some discrepancies and calls upon the assessee to produce certain vouchers, bank statements, wealth statements, personal expenditure statements etc. etc. Since all the facts relevant to the assessment are within the personal knowledge of the assessee, he may decide immediately that it can be beneficial for hind to be assessed at a particular amount rather than to be assessed after production of the material required by the I.T.O. In such case, if he offers to be assessed at a particular amount and if the I.T.O. after approval of his Inspecting Assistant Commissioner or Commissioner of Income Tax, as required by Circular No.i7 of 1990, accepts it the enforceable agreement comes into existence at once and legal rights flow from it. The I.T.O. in such case, may recover the tax assessed and the assessee may get it enforced if the I.T.O. or for that matter, any other officer repudiates it. We have held such contracts as completed and enforceable agreements for the reason that they are result of offer and acceptance coupled with consideration. Now take another example. An assessee files his return showing nil income in response to notice served by the Income Tax Officer either under section 56 or 65 of the Income Tax Ordinance. The assessee appears before the I.T.O. and he obtains his signatures on the blank order sheet where subsequently an agreed assessment order is framed. We have called such type of order illegal on the basis of lack of consideration on the part of the assessing officer without entering into the controversy of signing of blank or written order sheet. An assessee who is present before the assessing officer cannot prove his allegation except by his own word of mouth. On the other hand, the order sheet is fortified by presumption of the official act though such presumption can be rebutted. Obviously, in such cases, taking resort to the lack of consideration would be more effective and efficacious remedy than accepting the mere word of mouth of an assessee. Sometimes, these types of cases are complicated by lodging of the complaint to superior tax authorities immediately after execution of an agreed assessment. In such cases, both the parties are aware that an agreed assessment has been arrived at but the assessee after coming out of the office of the I.T.O. lodges complaint that he has been forced to sign the order-sheet which fact is of course disputed by the assessing officer. In such cases also the principle of lack of consideration on the part of the assessing officer once again plays very vital role and clinches the issue. Nevertheless, the issue as to whether an agreed or allegedly agreed assessment should be annulled or set aside depends on the judicial discretion of the presiding officer which surely is to be regulated by established legal principles.

11. With this background in mind, let me now turn to the issue referred to us.

12. I have already reproduced above three circulars and the last circular is at the moment reigning the field. From its persual, it is clear that even now in cases of agreed assessments, an Inspecting Assistant Commissioner or Commissioner of Income Tax as the case may be, is in any case, involved in it. Even under. para. 5 of Circular No.17 of 1979 both I.A.C. and C.I.T. (A) were involved in the process of arriving at an agreed assessment. Now the question is should we allow an I.A.C. to invoke his powers under section 66(A) while he himself or his predecessor in office has been involved in the process of arriving at an agreed assessment. My answer to this question is in an emphatic "No". 1 have two reasons in support to my conclusion. The first is supported by Doctrine of Finality and the second is based on prohibition against change of opinion. When an I.T.O. has arrived at agreed assessment in consultation with or with approval of his I.A.C. or C.I.T. as the case may be, they have done so with their eyes wide open and keeping into consideration the advice of the C.B.R. contained in clause (vi) of para. 4 of Circular No.17 of 1990 regarding maximum possible utilization of both the internal and external sources before arriving at an agreed assessment, in my humble opinion, he should not be given one more opportunity of forcing an assessee to undergo the mental torture of another assessment proceedings in the name of revenue interest for both the reasons given above. This interpretation is supported by aforesaid C.B.R. Circular itself. Suppose an agreed assessment has been arrived at an income which is more than Rs.2,00,000 with the approval of C.I.T. as required by aforesaid Circular; would an IA.C. be competent to invoke section 66(A)? The answer would again come in negative. Thus, this circular itself has created a dent in section 66(A). Now it may be argued that in such circumstances the section should be allowed to prevail upon a circular. But my answer would be that C.B.R. having been created for purposes of generating revenue are within their powers under section 8 of the Income Tax Ordinance. Thus, whatever, view is taken, I am of the considered view that if an agreed assessment is arrived at in accordance with the provisions of aforesaid circular both I.A.C. and C.I.T. are rendered incapable of invoking their powers under section 66(A) or 138 of the Income Tax Ordinance for the simple reason that such agreement makes both sections otiose. But at the same time let me also mention that where an agreed assessment order has been framed in violation of aforesaid Circular, it may also be not binding being contrary to law as was held by their Lordships of Lahore High Court in the case of Tanveer Brothers (supra).

13. I have already pointed out that the I.T.O. exercises the powers under Income Tax Ordinance and represents what the learned Judicial Member calls "Revenue". I would like to dilate on this aspect a bit more. In para. 10 of his proposed order, the learned Judicial Member has talked of "disabilities prescribed by not only an I.T.O. but also under various legislations being usually a civil servant". But with due respect to him, I am not aware of any disability which it might have been expressly or impliedly created by the Income Tax Ordinance against agreed assessment orders. Certain conditions, of course, have been laid down by C.B.R. by their Circular No-17 of 1990 and for all practical purposes, the I.T.O. represents the Department and binds it by agreed assessments framed by him in accordance with the principles of Law of Contract and in keeping with the directions of C.B.R. contained ire Circular No.17 of 1990. In this context, I would like to refer to sections 337 and 338 of Criminal Procedure Code which deal with the tender of pardon to an approver. Since the principles of interpretation of fiscal and criminal laws are same, the comparison of provisions of Income Tax Ordinance with those of Criminal Procedure Code would be definitely advantageous.

14. Generally speaking, any person, who commits any crime is liable to be charged and prosecuted and if found guilty, his trial may culminate in conviction and sentence. But sometimes, the State finds it difficult to establish the guilt of an accused for lack of evidence and consequently an offer is made to a co-accused to the effect that if he fulfils certain conditions including the condition of giving evidence against his other co-accused persons, he would be tendered pardon and if he accepts it, he can be tendered such pardon by a Magistrate under section 337. In such cases also a valid contract comes into existence which binds the State. Thus, in effect, an approver even though guilty of an offence, stands freed from any penalty or disability. It actually removes the penalties and disabilities and restores him to all his civil rights. It makes him, as it were, a new man, and gives him a new credit and capacity in life. If a legal contract of tender of pardon has come into existence, neither the Sessions Judge nor the High Court can, in exercise of their revisional jurisdiction, try the accused after relieving the State from its contractual obligation. (Please see PLD 1981 Lahore 543 (Qamaruzzaman and another v. The State).

15. The position of a Magistrate under Criminal Procedure Code is like that of an I.T.0. appointed under Income Tax Ordinance. The Magistrate exercises the powers on behalf of the State under Criminal Procedure Code. The I.T.O. on the other hand, represents C.B.R., which is referred to as Department in Pakistan. The legislature has given a Magistrate the power of tendering pardon to an accused. Same legislature has given powers to C.B.R. to issue directions from time to time to their assessing officers and they have given the power of entering into agreed assessment to an I.T.O. Both a Magistrate and I.T.O. are civil servants yet both enter into an agreement which binds the State and C.B.R. if the contract is entered into in accordance with their directions. When pardon is tendered to an accused, he virtually gets a fresh life and cannot be tried for the offence even on the directions of the Sessions Judge or the High Court given in exercise of their revisional jurisdictions under sections 435, 439 and 439 A of Criminal Procedure Code.

The same is the position of an assessee with whom an agreed assessment is made in accordance with law and C.B.R: s directions contained in their circulars issued from time to time. If the State can tender pardon to an accused charged with an offence punishable with capital sentence, I am unable to understand as to why C.B.R. should not be permitted to empower their I.T.O. to enter into an agreed assessment subject to the conditions laid down by them. If the Sessions Judge and the High Court have no powers to annul an otherwise a valid contract of tender of pardon except under provisions of the Contract Act, how an I.A.C. and C.I.T. should be permitted to wriggle the Department out of a validly entered agreed assessment. The Sessions Judge and the High Court may not be privies to the contract of tender of pardon yet they cannot annul it. On the other hand, the IA.C. and C.I.T. (A) are necessarily privy to the contract of agreed assessment. How can they be allowed to stand on a higher pedestal. With profound respect to my learned brother, let me point out that just as trial and conviction of any criminal is the responsibility of the State, the collection of revenue is the purpose o f creation of the C.B.R. However, the Legislature has given powers to both the State and C.B.R. to enter into agreement with an accused or an assessee in the best interest of the citizens and the country. As such, it cannot be said that the Legislature has rendered any provision of any law redundant. If pardon is tendered by the State to an approver charged with the most heinous crime of murder, it cannot be said that section 302 of Pakistan Penal Code and sections 435, 439 and 439A of the Criminal Procedure Code have been rendered redundant though their operation is suspended by the agreement of tender of pardon. Similarly, an agreed assessment suspends the provisions of sections 62, 66A and 138 and with profound respect for my learned brother, such interpretation is not at all violative of any of the known principles of interpretation of statutes. My learned brother has cited several cases in support of his conclusion but with due respect to him, they are not applicable at all in the case under consideration.

My learned brother has also dilated on principle of estoppel, however, let me respectfully point out that the principle of estoppel does apply in cases of both contracts of tender of pardon and agreed assessments and it operates against both the parties of aforesaid contracts provided they change their respective positions on representation made by the other. I think that the discussion, which has been made above, is enough to establish my point of view and I need not dwell upon it any more.

Now to conclude, I respectfully agree with and affirm, for the reasons given above, the view of this Tribunal as propounded in a decision reported as 1989 PTD 907 and consequently, my answer to this question put up before the Full Bench is in the negative.

INAM ELLAHI SHEIKH, ACCOUNTANT MEMBER.--I agree with the order of the learned Chairman. Hence the question is answered in the negative.

M.BA./1743/T Order accordingly.