AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN VS SIRAJ-UD-DIN, 1993 PTD-LAHORE-HIGH-COURT-LAHORE 206 (1992)

(a) Qanun-e-Shahadat (10 of 1984)---

----Art.l(2)---Qanun-e-Shahadat is applicable to all judicial proceedings before any Court, ,a Tribunal or any other Authority exercising judicial or quasi- judicial powers or jurisdiction except an Arbitration---Proceedings before Income-tax Authorities were judicial in nature and Authorities were exercising quasi-judicial, if not judicial powers.

(b) Income Tax Appellate Tribunal Procedure Rules, 1981---

----R.12---Reference---Income Tax Ordinance (XXXI of 1979), S.136-- Question as to whether requisite copies were sent to assessee being one purely of fact, could not be agitated before High Court.

(c) Wealth Tax Act (XV of 1963)---

----Ss.21 & 2(m), Expln. I---Assessee gifted 1/2 share in the house to her minor daughter -and appointed her (assessee's) mother as guardian of the minor---Guardian having been appointed for the person of minor and not for the property, assets of the minor, held, were rightly clubbed with those of assessee---Contention that the property belonged to more than one persons and assessment in respect of such property should have been made as association of persons was repelled in view of S.2(m), Expln. 1 of the Act.

Siraj-ut-Din Khalid for Applicant.

Nemo for Respondent.

Date of hearing: 8th February, 1992.

JUDGMENT

M. MAHBOOB AHMAD, C.J.---This order shall dispose of P.T.Rs Nos. 12/91, 13/91, 14/91, 15/91, 16/91, 17/91, 18/91, 19/91 and 20/91 relating to assessment years 1980-81, 1981-82, 1982-83, 1983-84, 1984-85, 1985-86, 1986-87, 1987-88 and 1988-89, respectively. By these applications, the petitioner prays that the following questions said to be of law and arising out of the order of the Income Tax Appellate Tribunal passed on 10th March, 1991.in separate appeals relating to the assessment years in question be framed for answer:--

(1) Whether on the facts and in the circumstances of the case the Tribunal was justified to shift onus to the appellant of proof for not sending a copy to her of memorandum of appeal filed by the Department?

(2) Whether on the facts and in the circumstances of the case the Tribunal was legally justified to hold that the onus heavily fell on the appellant to disprove the verity of the certificate filed by the Department under Rule 12 of the 1.TA.T. Rules?

(3) Whether on the facts and in the circumstances of the case the Tribunal was legally justified to hold the assessability in the hands of the appellant of 1/2 share in property - No. 100-A held by the legal guardian of the person of the minor?

(4) Whether on the facts and in the circumstances of the case the property held by the legal guardian of person of the minor was assessable in the hands of the guardian of person of minor holding the property?

(5) Whether on the facts and in the circumstances of the case the provisions of section 2(m), Explanation (i) were applicable in the case of the appellant?

(6) Whether on the facts and in the circumstances of the case the Tribunal, in respect of property No.100-A, New Muslim Town, Lahore, was justified to ignore Explanation (iii) to section 2(m) and to hold that the provisions of Explanation (i) to the said section were applicable?

(7)If the answer to the above question is in negative whether the assessment of property No.100-A, New Muslim Town, Lahore, can be made in the hands of the assessee?

2. The facts necessary for determination of the controversy involved in all these petitions are that originally the petitioner was the sole owner of property bearing No.12-A New Muslim Town, Lahore. It appears that on 20th August, 1979, she gifted 1/2 share in the house to her minor daughter Rabia Hassan. The gift was accepted on behalf of the minor by Mst. Iqbal Begum, mother of the petitioner, who had been appointed as guardian of the person of the minor by the Guardian Judge on 14th of December, 1978.

3. The petitioner filed her Wealth Tax Returns for the assessment years in question, wherein she excluded 1/2 share of the aforementioned house on the presumption that it belonged to her minor daughter. The Wealth Tax Officer, however, took the view that, as the daughter of the assessee was minor, her assets are to be clubbed with those belonging to the petitioner herself.

4. Feeling dissatisfied with the orders of the Wealth Tax Officer, the petitioner assessee filed appeals which were accepted by the Commissioner of Wealth Tax by two separate orders, dated 23rd August, 1983 and 20th April, 1984, who took the view that as a guardian had been appointed for the minor, her assets could not be clubbed with her mother, in view of section 21 of the Wealth Tax Act, 1963.

5. Aggrieved by this decision, the Wealth Tax Officer went in further appeal before the Appellate Tribunal and succeeded. The Tribunal on 18th October, 1989, reversed the orders of the Commissioner of Wealth Tax and, restored those of the Wealth Tax Officer.

6. The petitioner thereupon applied to the Tribunal for referring the questions abovementioned to this Court for opinion, but this request was declined on 6th March, 1991 by the learned Tribunal for the reason that as regards questions Nos. 1 and 2, the same were not questions of law, while on the controversy covered by questions Nos. 3 to 7, the provisions of law were so clear that it did not call for reference to this Court.

7. We have heard Mr. Siraj-ud-Din Khalid, Advocate in support of these petitions. He firstly contended that as a copy of the memorandum of appeal has not been sent to the assessee by the department before filing appeals 'before the Income Tax Appellate Tribunal, those appeals were not competent. In the same context, it was argued that the Tribunal has misdirected itself in relying upon Qanoon-e-Shahadat, 1984 for drawing a presumption that official acts are deemed to have been done in a regular manner as the provisions of that Act were not applicable.

8. There is no merit in this contention of learned counsel.' Although Evidence Act, 1872 was applicable to judicial proceedings in or before any Court, but the Qanoon-e-Shahadat, 1984 has been made applicable to all judicial proceedings before any Court, a Tribunal or any other Authority exercising judicial or quasi-judicial powers or jurisdiction except an Arbitrator. The scope of applicability of Oanoon-e-Shahadat, 1984, is thus much larger than that of Evidence Act, 1872. It cannot be doubted that the proceedings before the Income Tax Authorities are judicial in nature and further that they are exercising quasi-judicial, if not judicial powers.

9. So far as the objection as to the maintainability of the petition is concerned, it was found as a fact by the Income Tax Appellate Tribunal on the basis of a certificate produced by the department that requisite copies had been sent to the assessee. There is no effective rebuttal to this certificate. Even otherwise, the question involved being one purely of fact, this matter cannot be agitated before this Court.

10. The next contention of the learned counsel for the petitioner was that the Tribunal while rejecting the applications for reference has not adverted to questions Nos. 3 to 7. This argument is based upon misreading of the order of the Income Tax Tribunal. The request of the petitioner to refer questions Nos.3 to 7 was repelled by the Tribunal in the following words:---

"After hearing the rival arguments of the two sides and on going through the record we are of the view that the enunciation of law by the Tribunal is so clear and the provisions of law so unambiguous that it may not be prudent to burden the learned Judges with a question of which the answer is self-evident. We, therefore, refuse to refer questions Nos.3 to 7."

11. The next argument raised by the learned counsel for the petitioner was that as Mst. Iqbal Begum, grandmother of the minor had been appointed as her guardian, the assets of the minor could not be clubbed with those of the assessee. The learned counsel sought to draw strength in support to this contention from section 21 of the Wealth Tax Act, 1963. We are afraid, the contention is wholly misconceived. Admittedly, in the present case, the guardian appointed by the Court is for the person and not the property of the minor. In these circumstances, the provisions of section 21 have no applicability inasmuch as no guardian for the property of the minor having been appointed, the property cannot be said to be held by her for or on behalf of the minor.

12. In the last, while relying upon section 2(m)(iii) of the Wealth Tax Act. 1963, it was contended that as the property belonged to more than one person, the assessment in respect of property should have been made as an association of persons. This argument of the learned counsel fails to take notice of the Explanation I of clause (m) of section 2 of the Act, which ordains that property belonging to the minor child of assessee, shall be deemed to be the belonging to the assessee. Consequently, by virtue of the fiction created by this deeming clause, the half of the property though standing in the name of the minor daughter of the petitioner is also to be taken as belonging to the petitioner. That being so, the question of applicability of Explanation 3 does not arise as the property does not belong to more than one person.

In view of the foregoing discussion we do not find any merit in these applications, which are accordingly dismissed in limine.

M.BA./R-67Applications dismissed.