Income-tax Act (XI of 1922)---

----S. 33-A---Constitution of Pakistan (1973), Art. 199---Power of revision by Commissioner of Income-tax---Exercise of---No opportunity of hearing was afforded to petitioner by the Commissioner of Income Tax before passing the impugned order under S. 33-A of the Act---Such order was also passed after a year from the date of assessment order---No order prejudicial to the interest of assessee could be passed by Commissioner under S. 33-A of the Act without affording him opportunity of hearing in the matter nor such order could be passed after a year from the date of assessment---Impugned order was therefore declared to have been passed without lawful authority---Case was remanded to Commissioner for fresh decision.

Muhammad Ali Khan for Petitioner.

Muhammad Ilyas Khan for Respondents.

Date of hearing: 17th February, 1992.

JUDGMENT

M/s. Junejo Flour and General Mills Ltd. (hereinafter referred to as the petitioner) challenged the legality of order dated 1-1-1975 passed by the Commissioner of Income Tax, Lahore Zone, whereby the assessment orders for the years 1969-70 and 1970-71 passed on 25-6-1973 under section 23 read with section 15-BB of the Income Tax Act, 1923 were set aside and direction was made for fresh assessment.

2. Learned counsel for petitioner contended that the petitioner had applied for withdrawal of the tax-holiday which was allowed by the respondent and the petitioner became entitled to the initial depreciation but this fact was not taken into account in the impugned order. It was stated that no order prejudicial to the interest of the assessee could be passed without hearing the assessee/petitioner. It was next submitted that the impugned order was passed after a period of more than one year by the Commissioner of Income Tax contrary to the provision of section 33-A(1)(c) of the Income Tax Act.

Learned counsel for the respondents, on the other hand, contended that fresh assessments are yet to be made and the petitioner can claim the initial depreciation before the Assessing Authority, if he is found entitled thereto.

4. I have heard arguments advanced by learned counsel for the parties and have perused the documents on the file including the impugned order.

Admittedly the petitioner/assessee was not heard when the impugned order was passed setting aside the assessment orders for the years 1969-70 and 1970-71. It is also true, that the impugned order was passed after a year from the date of the assessment orders. No order prejudicial to the interest of the assessee could therefore be validly passed by the Commissioner of Income Tax without affording him opportunity of hearing in the matter.

The impugned order dated 1-1-1975 together with subsequent orders passed in this regard are therefore declared to have been passed without lawful authority and of no legal consequence.

In the result this petition is allowed and the cases remanded to the Commissioner of Income Tax, Lahore Zone for fresh decision after hearing the assessee/petitioner.

There shall be no order as to costs.

M.BA./J-30/L Case remanded.