(a) Income-tax Appellate Tribunal Procedure Rules, 1981---

----Rr.17 & 26---Income Tax Ordinance (XXXIX of 1979), S. 134---Appeal to Appellate Tribunal---Record showed that Advocate making request for adjournment was not an authorised representative nor his power of attorney was attached with the request---Request for adjournment was turned down by the Tribunal in circumstances.

(b) Income Tax Ordinance (XXXIX of 1979)--- .

----Ss. 59(4), 62 & 155---Self-assessment---Limitation---Framing of the assessment within the time prescribed under S. 59(4) of the Ordinance being necessarily of jurisdictional aspect, same could not be condoned by making a reference to the provisions contained in S. 155 of the Ordinance---Blanket protection under S.155 could not cure a jurisdictional defect which occurred in the case after time prescribed under S. 59(4).

In the present case in the grounds of appeal it was stressed that the limitation prescribed under the law having already lapsed the framing of assessment by resort to section 62 was not justified. And, that the assessing officer having lost the jurisdiction to frame the assessment could not have avoided the rigours of the limitation prescribed under section 59(4) of the Ordinance by simply mentioning section 62 of the Ordinance which was not applicable in the circumstances of the case. The assessing officer had expressly accepted that the return filed qualified for acceptance under self-assessment scheme and in fact it was never selected for detailed scrutiny. Since he was conscious of the fact that the time prescribed for framing assessment under section 59(4) of the Ordinance had long lapsed when he was framing the assessment, he simply mentioned section 62 in column 9 of the prescribed assessment form to wriggle out of the mischief of the limitation. This was clearly improper and a fraud upon the statute. The assessing officer attempted to cover his belated action of framing assessment by resorting to another section of the Ordinance which allowed him more time to frame an assessment. The confirmation of this action, by the appellate authority by reference to section 155 was even more fallacious. Framing of assessment within the time prescribed under section 59(4) of the Ordinance being necessarily of jurisdictional aspect, the same could not be condoned by making a reference to the provisions contained in section 155 of the Ordinance. The blanket protection provided under section 155 could not cure a jurisdictional defect which apparently occurred in the case after the time prescribed under subsection (4) of section 59 had long gone when the assessment in question was framed. The assessing officer tried to camouflage his mistake of not having- framed assessment within time by resorting to section 62 of the Ordinance and saying that the return was left to be assessed inadvertently. Tribunal annulled the assessment framed by the assessing officer under section 62 of the Ordinance.

Nemo for Appellant.

F.D. Qaiser, D.R. for Respondent.

Date of hearing: 13th December, 1992.

ORDER

NASIM SIKANDAR (JUDICIAL MEMBER).---This second appeal is directed against an order of AA.C. Range F, dated 6-1-1986. In the grounds of appeal the assessee-appellant agitates against framing of assessment under section 62 on the return filed by the applicant under section 59(1).

2. We have heard the learned D.R. A request for adjournment has been received from M/s. Hamid Law Associates. In this request it has been stated that both the assessee-appellant and her husband had proceeded abroad and, therefore, the appeal may be adjourned. On perusal of record it has been found that the learned Advocate making request for adjournment is not an authorised representative nor his power of attorney is attached with the request. Therefore, the request is turned down and we proceed to decide the appeal on merits.

3. The appellant is an individual. For the assessment year 1982-83 she filed a return under self-assessment scheme to declare an income of Rs.1,01,153. It appears that her case was set apart for detailed scrutiny. However, as the assessment order bears out, it was subsequently found that the case of the applicant was in fact not selected for detailed scrutiny. It is alsoevident that the assessing officer being conscious of the fact that the time prescribed under section 59(4) for framing of an assessment under self assessment scheme had lapsed, proceeded to frame the assessment under section 62 of the Ordinance. However, he accepted the income as returned. On appeal the learned appellate authority thought the contention raised before him to be necessarily of academic nature as the assessing officer had accepted the income as declared by the assessee-appellant. Therefore, he rejected the plea that framing of assessment under section 62 was illegal inasmuch as the time prescribed under subsection (4) of section 59 placing limitation to complete assessment by 30th of June of the financial year next following the income year had already lapsed. In this regard the learned appellate authority also referred to the provisions of section 155 of the Ordinance to say that the mistake in framing assessment within the aforesaid prescribed time did not result in any prejudice to the assessee as her declared income was accepted.

4. In the grounds of appeal it is stressed that the limitation prescribed under the law having already lapsed the framing of assessment by resort to section 62 was not justified. And, that the assessing officer having lost the jurisdiction to frame the assessment could not have avoided the rigours of the limitation prescribed under section 59(4) of the Ordinance by simply mentioning section 62 of the Ordinance which was not applicable in the circumstances of the case. The contentions raised in the grounds of appeal bear weight. The assessing officer has expressly accepted that the return filed by the present applicant qualified for acceptance under self-assessment scheme and that in fact it was never selected for detailed scrutiny. Since he was conscious of the fact that the time prescribed for framing assessment under section 59(4) of the Ordinance had long lapsed when he was framing the assessment on 30-5-1985, he simply mentioned section 62 in column 9 of the prescribed assessment form to wriggle out of the mischief of the limitation. This was clearly improper and a fraud upon the statute. The assessing officer attempted to cover his belated action of framing assessment by resorting to another section of the Ordinance which allowed him more time to frame an assessment. The confirmation of this action by the learned appellate authority by reference to section 155 is even more fallacious. Framing of assessment within the time prescribed under section 59(4) of the Ordinance being necessarily of jurisdictional aspect, the same could not be condoned by making a reference to the provisions contained in section 155 of the Ordinance. The blanket protection provided under section 155 cannot cure a jurisdictional defect which apparently occurred in this case after the time prescribed under subsection (4) of section 59 had long gone on 30-5-1985 when the assessment in question was framed. The learned DR has not been able to convince us of the vires of the action of assessing officer as also the interpretation assigned to section 155 of the Ordinance by the learned appellate authority. As observed earlier, the assessing officer tried to camouflage his mistake of not having framed assessment within time by resorting to section 62 of the Ordinance and saying that the return was left to be assessed inadvertently.

5. In view of this situation we are constrained to annul the assessment framed by the assessing officer under section 62 of the Ordinance.

6. It is so ordered.

M.BA./2589/TAppeal accepted.