I.TAS. NOS. 384/LB TO 387/LB OF 1988-89, DECIDED ON 11TH APRIL, 1995. VS I.TAS. NOS. 384/LB TO 387/LB OF 1988-89, DECIDED ON 11TH APRIL, 1995.
1995 P T D (Trib.) 1145
[Income-tax Appellate Tribunal Pakistan]
Before Ch. Irshad Ahmad, Judicial Member
and Saleem Asghar Mian, Accountant Member
I.TAs. Nos. 384/LB to 387/LB of 1988-89, decided on 11/04/1995.
(a) Interpretation of statutes---
----Amendment in a statute---Where an amending statute provides that the "amendment shall be deemed to have always been so amended" the amendment takes effect from the date when the original statute was enacted.
(b) Income Tax Ordinance (XXXI of 1979)---
----S. 65(1)(c) [as substituted by Finance Act (VII of 1992)]---Substitution of Cl.(c) of S.65(1) of the Income Tax Ordinance, 1979 by Finance Act, 1992-- Effect---Provision of S.65(1)(c) of the Income Tax Ordinance, 1979 having been amended by Finance Act, 1992 by providing that the substitution of cl. (c) of subsection (1) of S.65 of the Income Tax Ordinance, 1979 shall be deemed to have always been so made, substituted cl. (c) of subsection (1) of S.65 of the Ordinance shall be read as if it so existed on the 1st day of July, 1979 i.e. when the Income Tax Ordinance, 1979 came into force.
1987 PTD 129 ref.
(c) Income Tax Ordinance (XXXI of 1979)---
----S. 65(1)(c) [as amended by Finance Act (VII of 1992)---Words "income assessed or determined or deemed to have been assessed or determined" used in substituted cl. (c) of S.65(1) of the Income Tax Ordinance, 1979-- Connotation---Word "or" between the words "assessed" and "determined" twice occurring makes the two substitutions disjunctive and S.65(1)(c)(as substituted) would cover the situation where either the income has been assessed or determined or deemed to have been assessed or determined.
1987 PTD 129 ref.
(d) Income Tax Ordinance (XXXI of 1979)---
----Ss. 59 & 65(1)(c)---Self-Assessment Scheme---Income declared in the return filed under Self-Assessment Scheme is deemed to have been assessed or determined unless the return is not found to qualify for acceptance under the Scheme.
1987 PTD 129 ref.
(e) Appeal
----Appeal is continuation of the original proceedings.
F. A. Khan v. The Government of Pakistan PLD 1964 SC 520 ref.
(f) Income Tax Ordinance (XXXI of 1979)---
----S. 65(1)(c) [as amended by Finance Act (VII of 1992)]----Additional assessment---Self-Assessment Scheme---Income declared by the assessee in respect of assessment years 1982-83; 1983-84 and 1984-85, in respect of each year was accepted by the Income Tax Officer and the income-tax was determined through assessment form commonly known as I.T. 30---Held, cl.(d) of subsection (1) of S.65 of the Income Tax Ordinance, 1979 (as substituted) shall fully cover the assessee's case and as such the determination of income/income-tax through assessment form I.T. 30 would enable the Assessing Officer to make additional assessment under S.65 of the Ordinance.
1987 PTD 129 ref.
Naseer Ahmed, D.R. for Appellant.
Nemo for Respondent.
Date of hearing: 11th January 1995.
JUDGMENT
CH. IRSHAD AHMAD (JUDICIAL MEMBER).---This order disposes of four appeals filed by the I.T.O. relating to assessment years 1982 83,1983-84, 1984-85 and 1985-86. In his returns of income filed under the Self -Assessment Schemes for the above years the assessee, an individual, had declared net income at Rs.13,800, Rs.18,100, Rs.18,200 and Rs.18,400 respectively. The income declared as above in respect of each year was accepted by the I.T.O. and the income-tax were determined through assessment form commonly known as I.T.-30. The returned incomes showed that the assessee had earned the income by running 4 power looms. After the income in respect of each year and the tax payable in respect thereof had been determined as aforesaid on the basis of local enquiries it came to the notice of the I.T.O. that the assessee had, during the periods relevant to the above assessment years, been earning income by running 28 power looms. Accordingly, the assessing officer initiated proceedings for additional assessments under section 65 of the Income Tax Ordinance, 1979 (the Ordinance) and ultimately made assessments on the net income as follows:---
| 1982-83 | Rs.206,960 |
| 1983-84 | 116,960 |
| 1984-85 | 136,960 |
| 1985-86 | 146,960 |
On assessee's appeals the C.I.T.(A) annulled the assessments on the short ground that since the I.T.O. had not assessed the income of the assessee declared in the returns .filed under the Self-Assessment Scheme by order in writing he was not competent to initiate proceedings for additional assessments under section 65 of the Ordinance. In arriving at the above conclusion the Appeal Commissioner relied upon this Tribunal's decision reported in 1987 PTD 129.
The I.T.O. has objected to the order of the Appeal Commissioner on the ground that "the C.I.T.(A) was not justified in annulling the assessments".
Mr. Naseer Ahmad, D.R. has been heard in support of the appeals. None has appeared on behalf of the assessee in spite of the fact that notice of hearing of appeal was sent to him through mail at his proper address.
The D.R. has contended that passing of assessment order in writing on the returns filed by an assessee, particularly the returns filed under the Self -Assessment Scheme made in pursuance of the provisions of section 59 or section 59-A of the Ordinance, was not sine qua non for initiating proceedings under section 65 .of the Ordinance. The D.R. contended that this Tribunal's decision reported in 1987 PTD 129 which proceeds on the assumption that proceedings under section 65 of the Ordinance can be initiated only if the income of the assessee declared in his returns has been assessed by the I.T.O. by an order in writing needs to be reviewed because section 65 of the Ordinance does not provide to raise any such assumption. The D.R. further contended that whatever may be the position before the year 1992 the decision of the Tribunal reported 1987 PTD 129 has lost its presidential value because section 65 of the Ordinance has been amended by the Finance Act, 1992 whereby clause (c) of subsection (1) of section 65 of the Ordinance has been substituted and the 1992 Act specifically provided that the substitution shall be deemed to have always been so made.
Although the D.R.'s contention that the application of section 65 of the Ordinance is not restricted only to the cases where in assessment has already been made by an I.T.O. by an order in writing prima facie appears to be well-founded but we need not enter into the above moot at this stage particularly in view of the fact that clause (c) of subsection (1) of section 65 has been substituted with retrospective effect. It may be useful if the text of clause (c) of subsection (1) of section 65 of the Ordinance as it existed before it was amended by the Finance Act, 1992 and as it stands after the amendment are reproduced:---
Clause (c) as it existed before it amended in 1992.
"(c) The total income of an assessee or the tax payable by him has been assessed or determined under subsection (1) of section 59 and no order of assessment has subsequently been made under this section or any other provision of this Ordinance:'
Clause (c) substituted by the Finance Act. 1992
"(c) The total income of an assessee and tax payable by him has been assessed or determined under subsection (1) of section 59 or section 59-A or deemed to have been so assessed or determined under subsection (1) of section 59 or section 59-A."
The Finance Act, 1992 by which clause (c) ibid has been substituted specifically provided that the clause shall be deemed to have always been so substituted. It is trite rule of construction of statutes that where an amending statute provides that "the amendment shall be deemed to have always been so amended" the amendment takes effect from the date when the original statute was enacted. Thus, clause (c) ibid as amended by the 1992 Finance Act shall be read as if it so existed on the 1st day of July, 1979, i.e. when the Ordinance came into force. It may be noted that in the substituted clause (c) ibid the words used are "income assessed or determined or deemed to have been assessed or determined". The word `or' between the words `assessed' and' `determined' twice occurring makes the two situations disjunctive and in this way the clause would cover the situation where either the income has been assessed or determined or deemed to have been assessed or determined. It is an accepted position that the income declared in the return filed under the Self-Assessment Scheme is deemed to have been assessed or determined unless the return is not found to qualify for acceptance under the Scheme. So far as these cases are concerned, it is an accepted position that the assessee in, respect of each year has filed the return of his income under the Self -Assessment Scheme of the year and the income/tax was determined on the basis of the declared version.
The question may be raised whether we can decide these appeals in the light of the provisions of clause (c) of subsection (1) of section 65 of the Ordinance as substituted by the Finance Act, 1992. The answer to the above question is that that not only we can so decide but we must so decide. The reason is that the amending statute i.e., Finance Act, 1992 specifically provided that clause (c) of subsection (1) .of section 65 of the Ordinance shall be deemed to have always been substituted. It is also trite sale established by high judicial authority that an appeal is the continuation of the original proceedings. If the authority is needed a reference may be made to the decision of the Supreme Court of Pakistan in FA. Khan v. The Government of Pakistan, PLD 1964 1 Supreme Court 520. Thus, clause (c) of subsection (1) of section 65 as amended shall fully cover the assessee's case and as such the determination of income/income-tax through assessment form (I.T.30) would enable the assessing officer to make additional assessment under section 65 of the Ordinance.
The I.T.O.'s appeals are accepted and the case is remitted to the concerned Appeal Commissioner for deciding the assessee's appeals on merits.
M.BA./94/TAppeal accepted.