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

----S. 129---Appeal to Appellate Assistant Commissioner---Every order passed by the Assessing Officer is not appealable to the Appellate Assistant Commissioner unless it is so provided under S.129.

An appeal is a substantial right and cannot be exercised in absence of an express enabling provision of law.

The scheme of the Income Tax Ordinance bears testimony to the fact that right of appeal against the orders of Income Tax Officer is restricted to certain orders passed only with reference to various sections of the Ordinance as mentioned in section 129 of the Ordinance. In other words, every order passed by the Assessing Officer is not appealable to the Appellate Assistant Commissioner unless it is so provided under section 129. This appears to be departure from many other statutes where right of appeal to a higher forum is conferred with reference to the orders passed by a lower functionary without any reference to the powers exercised under various sections of the relevant statutes.

Muhammad Farid Jan v. Colonization Officer, Sukker Beraj Hyderabad and others PLD 1965 SC 399 and Abdur Rehman v. Muhammad Sharif and others PLD 1979 SC (AJK) 177 ref.

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

----Ss. 129 [as amended by Finance Act (VI of 1987], 50(4) & (5) & 52---Central Board of Revenue Instruction No. 1(29)-IT-I/79-OT-111, dated 7-1-1982---Maxim Expressio unimus est exclusio alterius---Deduction of tax at source---Failure to deduct tax at source ---Assessee was treated as an "assessee in default" under S. 52 by the Assessing Officer---Right of appeal against order under S. 52 of the Ordinance---Legislative history and effect of amendment of S. 129 by Finance Act, 1987---Order under S. 52 read with S.50(4) of the Ordinance was passed by the Income Tax Officer on 21-5-1984 and the appellate order was rendered on 26-6-1985 when S. 129 did not contain any right of appeal against an order under S. 52 of the Ordinance---Principles of casus omissus in interpretation of statutes, therefore could have no part to play during the intervening period.

In the present case the assessee, a public limited company, was engaged in manufacture and sale of sugar. During the assessment years 1982-83 and 1983-84, they were served with a notice for non-compliance of section 50 of the Income Tax Ordinance. The department found that the company had awarded carriage contract for sugar-cane to a number of persons but failed to comply with the provisions of section 50(4) which pertain to deduction of tax at source. On finding the explanation of the company as unsatisfactory, the Assessing Officer proceeded to raise a demand representing 3% of the total payments made by the company to the carriage contractors during the assessment years 1982-83 and 1983-84. Thus the company was treated as an assessee in default under section 52 of the Income Tax Ordinance 1979. Before recording the finding and holding the company an assessee in default vide his order dated 21-5-1984, the Assessing Office rejected their contention that the company was justified in not making any deduction from the payments ,made to the carriage contractors in view of Central Board of Revenue instructions issued vide their letter No.1 (29)-IT-I/79-PT-III, dated 7-1-1982. On appeal the C.I.T. (Appeals), by way of the impugned order annulled the order passed by the I.T.O. on the grounds of its being improper, without jurisdiction and, therefore, not sustainable in the eyes of law.

The question that was to be answered was whether the order of A.I.T.O. dated 21-5-1984 passed under section 52 read with section 50(4) was appealable or not.

The Income Tax Officer passed the order under section 52 of the Ordinance and at the relevant time when assessment order was made on 21-5-1986, an order under section 52 was not appealable and that the Finance Act 1987 through which an amendment was made in section 129 and an order under section 52 was made appealable to Appellate Assistant Commissioner had no retrospective effect; the C.I.T. (Appeals) held the order under section 52 to be necessarily an assessment order which was provided only under section 62 read with section 56 of the Ordinance and an order under section 62 was appealable before Inspecting Assistant Commissioner.

In the Income Tax Act 1922, section 18(3-BB) provided for payments by deduction at source exactly in the same manner as is provided under section 50(4)(5) of the Income Tax Ordinance, 1979. And, under section 30(1-A) of the Act a right of appeal was allowed to a person who, amongst other, denied his liability to deduct tax under subsection (3-BB) of section 1F to file an appeal before the Appellate Assistant Commissioner to be declared not liable to make such deduction. This right of appeal, as the plain reading of section 30(1-A) revealed, was available to the aggrieved person only after he had deducted the tax at source. The Legislature while, framing section 129 of the Ordinance 1979, was evidently conscious of the fact that a right of appeal was available under the aforesaid provision to a person who was liable to deduct tax at source. However, this right was not provided for till the year 1987 when by way of an amendment through Finance Act 1987, the words "or an order under section 52 treating a person to be an assessee in default" were inserted. It is, therefore, clear that after the repeal of the Act of 1922 and enforcement of Income Tax Ordinance in 1979 till the promulgation of lenience Act 1987 no right of appeal was expressly made available to a person who was treated to be an assessee in default by the Income Tax Officer. The omission of mention of section 52 in section 129 of the Income Tax Ordinance, as originally framed, itself establishes that the legislature did not intend devolving of such a right on a person treated as an assessee in default. Therefore, absence of section 52 in finding a place in section 129 is conspicuous to bar exercise of right of appeal against an order passed under this section at the relevant time. The time cherished legal maxim expressio unius est exclusio alterius meaning the express mention of one thing implies the exclusion of another holds the field from the time of repeal of the Income Tax Act, 1922 and the promulgation of Finance Act, 1987 through which the aforesaid amendment was made in section 129 of the Income Tax Ordinance, 1979. The impugned order under section 52 read with section 50(4) of the Ordinance was passed by the Income Tax Officer on 21-5-1984 and the impugned appellate order was rendered on 26-6-1985 when section 129 did not contain any right of appeal against an order under section 52 of the Ordinance. The principle of casus omissus in interpretation of statutes, therefore, can have no part to play during the intervening period. Right of appeal has to be a creation of a statute, its exercise is also limited within the contours of the statute.

Muhammad Farid Jan v. Colonization Officer, Sukkur Beraj Hyderabad and others PLD 1965 SC 399 fol.

1960 PTD (Trib.) 129; (1964) 9 Tax 48 (Trib.); Boddu Saee-Tharama Swasmy v. Commissioner of Income Tax, Madras (1955) 28 ITR 156 and Commissioner of Income Tax, Bombay v. Jagdish Parshad Ram Nath (1955) 27 ITR 192 ref.

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

----Ss. 50(4), 52, 56 & 62---Deduction of tax at source---Failure to deduct tax at source---Order under S. 50(4) read with S. 52 does not amount to an "assessment" under S.62 read with S. 56 of the Ordinance.

(1971) 80 ITR 631 distinguished.

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

----S. 2(7)---"Assessment"---Definition.

Assessment has not been defined in the Ordinance in precise words. Section 2(7) of the Ordinance merely extends the scope of word assessment to include reassessment and additional assessment. An assessment is not merely an "order". It is rather chain of proceedings which ultimately culminates into passing of an "order". It is a process by which total income of a person is determined by the Assessing Officer. The process may be set at motion by a person voluntarily filing a declaration of his income or it may start by issuance of a notice for filing of the return. Before an "order of assessment" is framed, a number of steps are contemplated from both sides, the Assessing Officer as well as the assessee.

Complete assessment proceedings 'may include all the ancillary proceedings but part of proceedings cannot amount to complete assessment.

(e) Income Tax Ordinance (XXXIX of 1979)---

----Ss.129, 50(4) & 52---Appeal to Appellate Assistant Commissioner---Failure to deduct tax at source---Order under S. 50(4) read with S. 52---Provision contained in S. 129 did not provide for any right of appeal to a person who denied his liability to make deduction at source at the relevant time.

(f) Income Tax Ordinance (XXXIX of 1979)---

----S. 129 [as amended by Finance Act (VI of 1987)], Ss. 50(4) & 52--?Amendment made in S. 129 by Finance Act, 1987 was not intended by the Legislature to have retrospective effect.

I.T.O. (Investigation) Circle I, Dacca v. Suleman Bhai Jiwa etc. PLD 1970 SC 82 and Nabi Ahmed and others v. Home Secretary, West Pakistan PLD 1969 SC 599 ref.

M. Arshad, DR for Appellant.

Naseem Zafar ITP for Respondent

Date of hearing: 7th May, 1992.

ORDER

NASIM SIKANDAR (JUDICIAL MEMBER).---By way of these appeals, a consolidated order of C.I.T. (Appeals) Zone-2 Rawalpindi dated 26-6-1985 for the assessment years 1982-83 and 1983-84 is impugned. In the grounds of appeal for both of these years a preliminary objection against the impugned-order has been raised describing the same to be void ab initio as the original order passed by the assessing officer dated 21-5-1984 under section 52 read with section 50(4) of the Ordinance was allegedly not appealable under section 129 of the Ordinance.

2. The assessee-respondent is a public limited company, engaged in manufacture and sale of sugar at Faisalabad. During the assessment years 1982-83 and 1983-84, they were served with a notice for non-compliance of section 50 of the Income Tax Ordinance. The department found that the company had awarded carriage contracts for sugar-cane to a number of persons but failed to comply with the provisions of section 50(4) which pertains to deduction of tax at source. On finding the explanation of the respondent? company as unsatisfactory, the Assessing Officer proceeded to raise a total demand of Rs.2,94,831 representing 3% of the total payments made by the respondent-company to the carriage contractors during the assessment years 1982-83 and 1983-84. Thus the respondent-company was treated as an assessee in default under section 52 of the Income Tax Ordinance 1979. Before recording the finding and holding the respondent-company an assessee in default vide his order dated 21-5-1984, the Assessing Officer rejected their contention that the respondent-company was justified in not making any deduction from the payments made to the carriage contractors in view of Central Board of Revenue instructions issued vide their Letter No.1 (29)-IT-I/79-PT-III, dated 7-1-1982.

3. On appeal the learned C.I.T. (Appeals), by way of the impugned order annulled the order passed by the I.T.O. on the grounds of its being improper, without jurisdiction and, therefore, not sustainable in the eyes of law. Earlier the appellate authority agreed with the contentions raised before it by the present respondent that a direct assessment on the company for default of the principal officer for failure of deduction of tax under section 50 was not permissible under the law; that the Income Tax 'Officer could hold only the principal officer as defined in section 50(9) as an assessee in default and not. the appellant company under section 52 which simply declares the default and that the assessment and recovery of tax from any person in default could only be made under section 56 read, with section 62 and not under section 52 as done in the present case. It was further submitted before the first appellate authority that the order passed by the Income Tax Officer was presumably, under section 62 as no such order was permissible under section 52 of the Income Tax Ordinance. Local or territorial jurisdiction of the Income Tax Officer, Contractors Circle, Faisalabad was also challenged. On facts it was submitted before the C.I.T. (Appeals) that since no payments to the carriage contractors exceeding Rs.50,000 were made by the respondent-company, the question of making deduction or the violation of the section 50(4) of the Ordinance did neither took place nor it gave any justification to the Income Tax Officer Contractors Circle, Faisalabad to raise the impugned demand. The department on the other hand repeated its preliminary objection to the effect that no appeal could be filed against .an order passed under section 52 read with section 50(4) of the Ordinance since these sections do not find any mention in section 129 of the Income Tax Ordinance, 1979. It was also submitted that demand for both of these years was created against the company in its capacity as a "person" deemed to be an assessee in default under section 52, The local or territorial jurisdiction of the concerned I.T.O. was also defended. To these objections, the present respondent averred that the assessments and recovery of tax from any person in default could only be made under section 56 read with section 62 of the Ordinance and' that presumably .the Income Tax Officer passed the order under section 62 as no such order was contemplated under section 52 or section 50(4) of the Ordinance. It was, further stated that Chapter VI of the Ordinance comprised of sections 50 to 54 which dealt with the procedure for payment of tax before assessment while Chapter VII comprising of sections 55 to 67 dealt with the methods of ascertainment of total income of a person. Another plea taken by the present respondent was that as per provisions of section 50(4) it was required to deduct tax on the basis of payments made to contractors and not on the basis of income assessed. Thus, the order under section 52 was rendered only in order to declare it an assessee in default for the purpose of taking recovery action.

4. The learned C.I.T. (Appeals) while recording the impugned order disagreed with the preliminary objection of the department regarding competency of the appeal filed by the present respondent. The objection of the department that no appeal could be filed against an order passed under section 50 read with section 50(4) of the Ordinance on the ground that both of these sections did not find any place under section 129(1) of the Ordinance was held to be unfounded. The learned C.I.T. (Appeals) observed that section 52 read with section 50(4) only determined the liability and laid down the procedure for computation of tax and that these were not charging sections. He went on to hold that:---

"Assessment and recovery of tax from any person in default could only be made under section 56 read with section 62. Therefore, there could be no order under section 52. If the I.T.O. has proceeded to pass an order under an incorrect provisions there is no bar that incorrect provision cannot be read as correct provisions. The impugned order should be taken to have been passed under the correct provisions of law. Quoting of incorrect provisions will not effect the contents of the order. The objection of the Assessing Officer in this regard being without any basis stands rejected. Proper jurisdiction does vest under section 129 of the Income Tax Ordinance, 1979 with the Commissioner of Income Tax (Appeals), Faisalabad and the Appeals are disposed of accordingly."

5. We have heard the parties. Both the preliminary objections by the department as also the contentions raised by the present respondent before the learned C.I.T. (Appeals), by and large, remain the same. Therefore, the question that needs to be answered is, whether the order of A.I.T.O.

Faisalabad dated 21-5-1984 passed under section 52 read with section 50(4) was appealable or not. Before entering into a detailed discussion of the said subject, it would be convenient to state the points on which the parties are not at variance before us. It is an admitted position that the Income Tax Officer passed the order under section 52 of the Ordinance that at the relevant time when assessment order was made on 21-5-1986, an order under section 52 was not appealable and that the Finance Act 1987 through which an amendment was made in section 129 and an order under section 52 was made appealable to Appellate Assistant Commissioner had no retrospective effect; that the learned C.I.T. (Appeals) held the order under section 52 to be necessarily an assessment order which was provided only under section 62 read with section 56 of the Ordinance and that an order under section 62 was certainly appealable before Inspecting Assistant Commissioner.

6. Learned AR for the assessee respondent supported the impugned order more particularly the findings relating to maintainability of appeal before the Appellate Assistant Commissioner. The learned DR on the other hand repeated the objections which the Assessing Officer submitted in writing before the learned C.I.T. (Appeals).

7. That the right to file an appeal is a substantial right and cannot be exercised in absence of an express enabling provision of law hardly need emphasis. The Supreme Court of Pakistan in a case reported as re: Muhammad Farid Jan v. Colonization Officer, Sukkar Beraj Hyderabad and others PLD 1965 SC 399 held that right to file an appeal was a creation of statute and, therefore, to be confined with in the limit of the statute. In another case reported as re: Abdur Rehman v. Muhammad Sharif and others PLD 1979 SC (AJK) 117, their Lordships of the Supreme Court of AJ&K held that right of appeal unless given by any statute or rule was non-existent. The scheme of the Income Tax Ordinance bears testimony to the fact that right of appeal against the orders of Income Tax Officer is restricted to certain orders passed only with reference to various sections of the Ordinance as mentioned in section 129 of the Ordinance. In other words, every order passed by the Assessing Officer is not appealable to the Appellate Assistant Commissioner unless it is so provided under section 129. This appears to be departure from many other statutes where right of appeal to a higher forum is conferred with reference to the orders passed by a lower functionary without any reference to the powers exercised under various sections of the relevant statutes.

8. In the Income Tax Act 1922, section 18(3-BB) provided for payments by deduction at source exactly in the same manner as is provided under section 50(4)(5) of the Income Tax Ordinance, 1979. And, under section 30(1-A) of the Act a right of appeal was allowed to a person who, amongst other, denied his liability to deduct tax under subsection (3-BB) of section 18 to file an appeal before the Appellate Assistant Commissioner to be declared not liable to make such deduction. This right of appeal, as the plain reading of section 30(1-A) revealed was available to the aggrieved person only after he had deducted the tax at source. The Legislature while, framing section 129 of the Ordinance in 1979, was evidently conscious of the fact that a right of appeal was available under the aforesaid provision to a person who was liable to deduct tax at source. However, this right was not provided for till the year 1987 when by way of an amendment through Finance Act 1987, the word "or an order under section 52 treating a person to be an assessee in default" were inserted. It is, therefore, clear that after the repeal of the Act of 1922 and enforcement of Income Tax Ordinance in 1979 till the

promulgation of Finance Act 1987 no right of appeal was expressly made available to a person who was treated to be an assessee in default by the Income Tax Officer. The omission of mention of section 52 in section 129 of the, Income Tax Ordinance, as originally framed, itself establishes that the Legislature did not intend devolving of such a right on a person treated as an assessee in default. Therefore, absence of section 52 in finding a place in section 129 is conspicuous to bar exercise of right of appeal against an order passed under this section at the relevant time. The time cherished legal maxim unius est exclusio alterius meaning the express mention of one thing implies the exclusion of another holds the field from the time of repeal of the Income Tax Act, 1922 and the promulgation of Finance Act, 1987 through which the aforesaid amendment was made in section 129 of the Income Tax Ordinance, 1979. The impugned order under section 52 read with section 50(4) of the Ordinance was passed by the Income Tax Officer on 21-5-1984 and the impugned appellate order was rendered on 26-6-1985 when section 129 did not contain any right of appeal against an order under section 52 of the Ordinance. The principle of casus omissus in interpretation of statutes, therefore, can have no part to play during the intervening period. As laid down by their Lordships of the Supreme Court in the above mentioned reported case PLD 1965 SC 399, not only that a right of appeal has to be a creation of a statute, its exercise is also limited within the contours of the statute.

9. This Tribunal while interpreting sections 30 and 33 of the Income Tax Act, 1922 read with section 18-A(8) has held that since appeal against levy of penal interest was not expressly provided for in the Act, no appeal in this regard could be filed before the Appellate Assistant Commissioner or the Tribunal. Reference in this regard is made to two cases reported as 1960 PTD (Trib.) 129 and (1964) 9 Tax 48 (Trib.). Dealing with the objection against levy of penal interest under subsection (8) of section 18-A, this Tribunal in the case. reported as 1960 PTD (Trib.) 129, held that it could not do anything in the case because the order levying penal interest was not appealable at all, and, that neither section 30 nor 33 which regulated the right of appeal provided for an appeal to the Appellate Assistant Commissioner or to the Tribunal against order of imposing penal interest. In the course of recording finding, this Tribunal relied upon two cases of Indian jurisdiction reported as re: Buddo Saee-Tharama Swasmy v. Commissioner of Income Tax Madras (1955) 28 ITR 156 and Commissioner of Income Tax Bombay v. Jagdish Parshad Ram Nath, (1955) 27 ITR 192. In. the latter case, Chagla C.J. has reproduced in extenso as under:---

"Therefore, the legislature has clearly kept in mind the difference between a penalty imposed under certain provisions of Act and interest which the assessee is liable to pay under section 18-A and while providing opportunity for a right of appeal against the orders of penalty the legislature has not provided for any appeal against the payment of penal interest. Now, there may be good reasons why the legislature did not do so..." ????????

The findings of this Tribunal in the aforesaid two cases also repell the observation of learned C.I.T. (Appeals) that assessment and recovery of tax from any person in default could only be made under section 56 read with section 62 and that there could be no order under section 52. His ultimate conclusion that an order under section 52 was necessarily an assessment order under section 62 is fallacious on the face of it. Perhaps he was conscious of the fact that he was possessed only with jurisdiction to hear appeals against orders framed under section 62 and not under section 52 at the relevant time. His treatment of order passed under section 52 as having been passed under section 62 only on the ground that misquotation of a provision of law does not effect the legality of the order, was merely an attempt to enlarge his jurisdiction unnecessarily. Therefore, his exercising of jurisdiction treating the, impugned order to have been passed under another provisions of law which was appealable before him cannot be sustained. The finding of the learned C.I.T. (Appeals) that order under section 50(4) read with section 52 amounted, to an assessment under section 62 read with section 56 of the Ordinance is also open to exception. Assessment has not been defined in the Ordinance m precise words. Section 2(7) of the Ordinance merely extends the scope of word assessment to include reassessment and additional assessment. An assessment is not merely an "order". It is rather chain of proceedings which ultimately culminates into passing of an "order". It is a process by which total income of a person is determined by the Assessing Officer. The process may be set at motion by a person voluntarily filing a declaration of his income or it may start by issuance of a notice for filing of the return. Before an "order of assessment" is framed, a number of steps are contemplated from both sides, the Assessing Officer as well as the assessee. In the case of present appellant, at best it could be said that only a part of such proceedings was held as the order passed by the Assessing Officer did not amount to complete assessment of the respondent assessee. It only required him to discharge his liability, as a payer to deduce certain amount before making the payment to the payees as required under section 50(4) of the Ordinance. It was not an assessment proceedings as regards the assessee-respondent though it could be considered as one relating to the assessments of the payee contractor. The principle is that OMNE MAJUS CONTINET IN SE-MINUS (the greater contains the less) but vice; versa, cannot be held to be correct. Therefore, complete assessment proceedings may include all the ancillary proceedings but part of proceedings cannot amount to complete assessment. In the case of the present appellant: the order under section 50(4) read with section 52, may be considered at the time of framing the assessment order for the year as a small part, in view of its resultant consequences on account of default committed while framing of the "assessment order". In case the deductions had actually been made, then ii could amount to a part of assessment proceedings of the payee contractors. In both cases, however, whether deduction is made or is not made, an order under section 50(4) read with section 52 does not amount to an assessment order of the deducting agency. It appears that learned C.I.T. (Appeals) proceeded on the ratio of a case of Indian jurisdiction reported as (1971) 80 ITR 631 which was also relied upon before us by the learned AR of the respondent. In this case K.L. Rai, J. sitting singly in re: Associated Pigment Ltd. v. I.T.O. H. Ward Company District II and another held that:---

"If a person is to be held responsible for payment of tax on the ground that he had failed to deduct such tax when making payment to a non? resident and for that purpose must be deemed to be a defaulter, any order directing him to -pay any such amount must be an order of assessment or must be a determination which is equivalent to an order of assessment so as to ~ entitle him to appeal against such determination."

In this case the petitioner/appellant, an Indian Company agreed to make certain payments as consideration money for technical assistance and know w?hom to a Japanese Company. This Company actually made payment of some of the agreed instalments but subsequently, it appears, on its application for a No Objection Certificate to obtain permission from the Reserve Bank of India for further remittances to the Japanese Company, the concerned Income Tax Officer informed the petitioner/appellant that remittances already made to the Japanese Company represented income of that concern accruing or arising in India and as such tax should have been deducted at source under section 18(3-B) of the Indian Income Tax Act, 1922. The applicant-company was also required to show cause as to why necessary deduction should not be ordered to be made before making future remittances. The findings of this case are not on all fours to the facts of the case under discussion before us. In the aforesaid case the learned Single Judge of the Calcutta High Court was dealing with a question as to whether the order requiring the appellant-assessee to account for deductions it ought to have made from the remittances already made to the Japanese Company was within the limit of four years as provided under section 34(3) of 1922 Act. The limit provided for initiation of proceedings under section 46(7) was also under determination in the aforesaid case. It was only in this context and for the purpose of the calculation of the time limit the learned Judge held on order holding a person to be an assessee in default as equivalent to an assessment order. It is pertinent to note that section 248 of the Indian Income Tax Act, 1961 is an exact replica of section 30(1-A) of the Income Tax Act, 1922 which expressly provides for filing of an appeal to Appellate Assistant Commissioner by a person who denied his liability to make any deduction. The competency of appeal by the alleged assessee in default therefore was not in question before the Honourable Judge. Therefore, the case relied upon by the learned counsel/AR is not relevant to the proposition before us because, as observed earlier, notwithstanding the fact the Income Tax Act, 1922 provided for a right of appeal, the provisions contained in section 129 of the Income Tax Ordinance did not provide for any such right to a person who denied his liability to make deduction at source at the relevant time.

10. As observed earlier the learned AR for the respondent accepted that the amendment made in section 129 by which orders under section 52 were made appealable in the year 1987 was not intended by the Legislature to have retrospective effect. Even otherwise, had it been so contended, the same would not have been tenable for the reason that the right of appeal being a substantive right will always be considered prospective in the absence of clear words of the statutes to the contrary. A plethora of authorities of the superior Courts exist against presumption of retrospectively of a legislation. A reference in this regard may be made to PLD 1970 SC 82 re: I.T.O. (Investigation) Circle-I Dacca v. Suleman Bhai Jiwa etc. and PLD 1969 SC 599 re: Nabi Ahmed and others v. Home Secretary West Pakistan.

11. In view of the aforesaid discussions we are of the considered view that an order passed under section 52 holding a person to be an assessee in default was not equivalent to an assessment order passed under section 62. And, since an order passed under section 52 was not made appealable before the Appellate Assistant Commissioner from the enforcement of the Income Tax Ordinance till the year 1987, the assumption of jurisdiction by the learned C.I.T. (Appeals) was clearly improper and without jurisdiction. We will, therefore, set aside the order and hold that the learned C.I.T. (Appeals) was not competent to entertain the appeal against the order passed under section 52 of the Ordinance holding the respondent to be an assessee in default.

12. Since we have set aside the impugned order in the preliminary objection of lack of jurisdiction the rest of the questions as regard territorial jurisdiction of the concerned Income Tax Officer or whether or not the provisions of section 50(4) of the Ordinance were attracted in the circumstances of the case will not require any further discussion.?

?

M.BA./11/T.T????????????????????????????????????????????????????????????????????????????????????? Order accordingly