I.T.AS. NOS.4263/LB TO 4266/LB OF 1996, DECIDED ON 14TH JUNE, 1997. VS I.T.AS. NOS.4263/LB TO 4266/LB OF 1996, DECIDED ON 14TH JUNE, 1997., 1998 PTD-INCOME-TAX-APPELLATE-TRIBUNAL-PAKISTAN 1396 (1997)

1998 P T D (Trib.) 1396

[Income-tax Appellate Tribunal Pakistan]

Before Khawaja Farooq Saeed, Judicial Member and Mansoor Ahmad, Accountant Member

I.T.As. Nos.4263/LB to 4266/LB of 1996, decided on 14/06/1997.

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

----S. 65---Re-opening of assessment---Unless the Assessing Officer had applied his mind independently and not by merely obeying the order. of Superior Authority, the provisions of S.65, Income Tax Ordinance, 1979 could not be applied---If, however, other requirements under law were available on record on the basis of which the Assessing Officer believed and was in a position to establish that the re-opening of an assessment was justified and that he did so on pointing out by some higher authority, notice under S.65, Income Tax Ordinance could not be considered as illegal.

Messrs A1 Ahram Builders v. Income Tax Appellate Tribunal 1992 PTD 1672 applied.

(b) Interpretation of statutes---

----Principle---Court is meant to interpret the law in a manner that makes it workable and not to make the same redundant.

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

----S. 154(6)---Service of notice---Jurisdiction---Proper service---Service of notice having been made properly and assessee having complied with the same, service of notice or jurisdiction could not be challenged in circumstances.

PLD 1996 SC 1 and PLD 1989 SC 503 ref.

(d) Income-tax---

----Documentary evidence---Photocopy of a document, though could not be equated with the original, but when the assessee had not denied the correctness of the photocopy of the document in question and had failed to produce the original document at all stages of the proceedings, presumption of correctness would be attached to such document.

1993 SCMR 956 ref.

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

----S. 148---Evidence on oath---Person on whom the assessee placed more than 50 % reliance in his support was proved to be bogus one---Ignoring of affidavits and non-confronting of the statements of witnesses, in circumstances, could not be considered to be illegal rendering assessment as void.

(f) Income-tax---

----Benami transaction---Merely not using the term "benami transaction" but "fake transaction" would not be an incorrect description and against the requirement of law.

(g) Income-tax---

----Lifting of veil of incorporation---Where the assessee had tried to cover the concealed transactions under the garb of the incorporation of Cooperative Society, such case was the one where the veil of incorporation could be lifted for finding as to who was the actual person dealing behind.

Muhammad Saleem Ch. and Muhammad Iqbal Khawaja for Appellant.

Shahbaz Butt, Legal Advisor and Farooq Tahir, D.R. for Respondent.

Date of hearing: 7th June, 1997.

ORDER

KHAWAJA FAROOQ SAEED, (JUDICIAL MEMBER). ---This appeal pertains to an individual who is Chief Executive of Sun Shine Cotton Mills, a public limited company. The assessment in this case was originally finalized by the Income Tax Department wherein the income of the assessee was determined by the department as under:-

Asstt. Year	Income declared and assessed.	Section	Source
1989-90	Rs.95,026	59 (b)??	Salary, Dividend and Interest
1990-91	Rs.178,126	62	Salary, Dividend, and interest
1991-92	Rs.1129,695	62	Salary and Dividend

???????????

The department received an information that the assessee is doing ?business of Real Estate which he has not declared as a part of his income. The information was in respect of following properties.

1. Land 401 Kanal, 19 Marlas ?Chung Punjgrain, Lahore.????????	Purchased by Sh. Aftab Ahmed on23-1-1959 in the name of Housing Building Cooperative Society (1989-90)
2. Land 12 Kanals, 13 Marlas Khasra No.9956, Tokhar Niaz Baig, Lahore	Purchased by Sh. .Aftab Ahmad on 11-5-1989 (Assessment Year 1989-90).
? 3. 21-B, Gulberg-II, Lahore.	Purchased by Sh. Aftab Ahmad on 17-1-1991. (Assessment Year 1991-92).
?4. Land 41 Kanals, 15 Marlas Mauza Jaliana District Lahore.	Purchased by Sh. Aftab Ahmad on 16-2-1991 in the name of M/s. Gold Star Cooperative Society.
5.? Land 35 Kanals, 6 Marlas Mauza Chung Punjgrain District Lahore	Purchased by Sh. Aftab Ahmad on 2-3-1991.
6. Land 10 Kanals, 15 Marlas Chung Punjgrain, District Lahore.	Purchased by Sh, Aftab Ahmad on 16-3-1991.
7. Land 10 Kanals, 15 Marlas Chung Punjgrain, District Lahore.	Sold by Sh. Aftab Ahmad
8. 112-B, Main Road, Gulberg, Lahore	Purchased by Sh. Aftab Ahmad in the name of Cooperative Housing Society on 28-6-1990
9.? Land Tokhar Niaz Baig, 10 Kanals, 13 Marlas	Purchased by Sh. Aftab Ahmad on 12-8-1991

The department issued a notice to the assessee for showing the reasons of not disclosing above information in his personal return. The reply sent by the assessee vide his letter dated 26-7-1993 was that admittedly the transaction entered is through him but as President of the two Cooperative Societies and not in personal capacity but he further said that the two registered societies had declared them in their assets under law and he has not concealed any income chargeable to tax. The I.T.O. found that assessee's statement was incorrect particularly in respect of properties shown at Serial Nos.2, 3, 5, 6 and 8 above The Department issued a notice wherein the main emphasis was on non-disclosure of properties purchased by the assessee. The assessee in reply said that the properties belonged to cooperative societies and he has purchased them as their President on their behalf. He said that the same are obtaining in the books of the society and the transactions with reference thereto were in consultation and under authority of the members. Rupees 775,000 were shown as Capital Gain on sale of property at Shish Mahal Road, Lahore. It was claimed that it was casual and isolated transaction and was exempt from tax. The learned I.T.O. issued notice under section 65 after great deal of inquiries to which as per order of learned I.T.O., the attitude of the assessee throughout remained evasive. Various discrepancies were found by the I.T.O. which includes following:------

1.???????? The reply that there is no mention of the properties which were purchased on behalf of the societies, in the Wealth Statement of the assessee is seemingly naive but betrays the motive of the assessee to conceal the investment in these properties from the eyes of the department. It needs hardly any elaboration that the assessee was under legal obligation to disclose the value to the extent of his investment in the societies in his wealth statement. Simple non?disclosure of this investment in the society shows that the assessee's hands are untidy. It is interesting to note that the wealth statement as on 30-6-1989 available on record was neither required because the assessee filed return for the assessment year 1989-90 under section 59(B) nor it was so requisitioned by the assessing officer, as the record shows. It seems that the assessee managed to get it inserted in the file in order to cover up his investment in the name of societies. Further comparison of this Wealth Statement with the Wealth Statement of the following assessment years i.e. 1990-91 shows that the value of investment appearing in respect of difference assets is world apart. For instance, in the Wealth Statement as on 30-6-1989 an amount of Rs.20,20,000 is appearing as advance to Gold Star Housing Society and Rs.23,726 to Cooperative Housing Building Society, whereas no advance is shown in the Wealth Statement as on 30-6-1990.

2.???????? As regards the non-production of prescribed register as per bye-laws of the society such as register of members, minutes book, etc, assessee has taken shifting stands. In his earlier letter he had stated that the registers are misplaced due to shifting of office but here he says that somebody appears to have intentionally removed some of the documents. It is interesting to note that it has only drawn on the assessee after gap of two years that the books have been intentionally removed. When asked why no F.I.R. was lodged when the books of the societies were so precious, the A.R. of the assessee in his undated reply received on 6-6-1995 in this office stated that the assessee had fully confidence in Chaudhry Ghulam Rasool the complainant in this case, therefore, no F.I.R. was lodged. This reply again found unconvincing because when the register belonged to the societies and not to the assessee, it was necessary to lodge F.I.R. regardless of his association with Ch. Ghulam Rasool. It again shows that it is all one man show.

3. The claim of the assessee that original books were produced also lacked proper verification. Therefore, the assessee was requested to produce the accountant who had written the books at the material time. Again the assessee without non‑disclosing name of the accountant stated that he is no longer in service and his whereabouts are not known. In spite of written request the address of the assessee's Accountant was not provided. This again leads to the interference that the books produced were not original as testified by the informer.

4. The names of the members who denied their membership were intimated to the A.R. of the assessee Mr. Kh. Muhammad Iqbal on 25‑4‑1995 during the hearing (see order sheet entry of the same date.)

5. The non‑furnishing of bank statements on the ground that these were missing is again unconvincing because during the two years long the assessee could obtain bank statements from the bank and produce them.

6. The argument of the assessee that no investment was made in the share of M/s. Sun Shine Cotton Mills Ltd. is very much surprising. Since this was admitted by the assessee in his undated letter received.

7. That the property worth million of rupees were sold to Mr. Habibullah the then member of the Society also shows the intention of the assessee to earn profit by dealing in real estate business. The local enquiries conducted revealed that his gentleman Khawaja Habibullah is an estate broker and he was enrolled as a member in order to sell the property comprising 401 Kanals and 19 Marlas at Chung which were resold to expatriate society and was financed by Bank of Oman. At present, Vilacia Town Phase‑II has been constructed here.

Final notice with regard thereto was given by the I.T.O. under section 13/62 dated 29‑5‑1995 wherein the assessee was asked to explain the nature and source of investments made in the properties mentioned therein within the meaning of provisions containing in section 13(1)(b)/2 and section 22 of the Income Tax Ordinance 1979, as under:‑‑‑--

"After prolonged correspondence and discussion with your A.R. Mr. Khawaja Muhammad Iqbal, Advocate I have formed this opinion that the various transaction effected by you in your individual capacity as well as in the capacity of President of two Cooperative Societies Namely M/s. Gold Star cooperative Housing Society and House Building Cooperative Society No.3 were funded by you out of your own undisclosed sources of the members enlisted were just the name lenders.

You are now requested to explain nature and sources of investment in the following properties by 07.060..1995. Please note that in case of non‑compliance or unsatisfactory reply or addition will be made in the relevant Assessment Year."

The reply to the above letter has been discussed by the I.T.O. in following manner:‑‑‑

"The A.R. of the assessee in response filed his letter dated 6‑6‑1995. In this letter he repeated his earlier statement that these transactions were carried out by the assessee on behalf of the societies from funds contributed by the members. He has only added that the property have been registered in the names of the Societies now. Needless to say that the registration of the properties in the name of Societies is immaterial in his case as evidence at this stage. It is obvious when the secret dealings have come into the open and the assessee is contesting the income tax proceedings he thought it fit to get properties registered in the name of the societies. The quintessence of the conclusion is that the absence of the Register of Members to verify the actual members at the material time and non?-production of books of account, is conclusive proof that the investment was made in the properties by the assessee himself out of his own undisclosed, taxable sources and the members mentioned in the list provided by the assessee have filed the affidavits just to help the assessee evade taxes."

The plot purchased by the assessee at 112‑B, Main Gulberg, Lahore shown at Rs.62,00,000 was also considered too low at the material time. Its average rate shown at Rs.52,991 p.m. was considered as lower on the basis of a property purchased by the T.B. Association consisting of 12 Marlas on 2‑10‑1991. The property purchased by the assessee was on 28‑6‑1990. The estimate proposed by the I.T.O. for this property was also contested by the assessee on various factual and legal premises which the learned I.T.O. considered not forceful and rejected the same. After going through discussion in detail finally the income of the assessee was determined as follows:‑‑---

1.Land 12 Kanals and 13 Marlas Khasra No.9956 Thokar Niaz Baig purchased on 11-5-1989.	Rs.51,23,250
2. Land 401 Kanals and 19 Marlas Mauza Chung Punjgrain purchased from 10-8-1988 to23‑1‑1989 through various? registers.	Rs.160,00.000
	Rs.211,23,250
(i) Sale Price of land at Mauza Chung measuring 401 Kanals and 18 Marlas	Rs.42,202,750
Less purchase price.	Rs.16,000,000
Profit earned under section 22.		Rs.2,62,04,750
(ii)? Profit earned on the sale of? Sheesh Mehal property as shown under section 22.		Rs.7,75,000
(iii) Sale Price of land at Thokar Niaz Baig.	53,76,250
Less purchase price.????	51,23,250
Profit earned under section 22.		Rs.2,53,000
Total:?		Rs.483,56,000
Add: Declared Income		Rs.95,026
Total assessed income		Rs.4,84,51,026
Assessment Year 1990‑91
Additions under section 13 (1)(b)
1. Bungalow No. 112‑B, Gulberg‑II, Main Road (15 Kanals and 17 Marlas) Purchased on 19‑5‑1991 Rs.52,991 per Marla.		Rs.62,00,000
2.? Value assessed @ Rs.80,000 per Marla. under section 13(2).	Rs.93,60,000
Less declared.?	Rs.62,00,000
Addition under section 13(1) (d)/2.		Rs.31,60,000
Add: declared income.		Rs.1,53,126
Total assessed income		Rs.95,13,126
Assessment Year 1991‑92: Additions under section 13(1)(b):.
1. Bungalow No. 21‑B Gulberg‑II Lahore; purchased on 17‑1‑1991.		Rs.52,00,000
2. Land 41 Kanals and 15 Marlas Mauza Jaliana (2‑5‑1991)		32,35,000
3. Land 35 Kanals and 6 Marlas Mauza Chung Jaliana (2‑3‑1991)		Rs.43,77,200
4. Land 10 Kanals and 13 Marlas,Thokar Niaz Baig Purchased on 7‑1‑1991 (Part Payment).		Rs.30,00,000
5. Land 10 Kanals and 15 Marlas Mauza Punjgrain (16‑3‑1991)		13,33,000
Total:?????????????		Rs.171,45,200
Add declared income.		Rs.11,29,695
Assessees Income.???		Rs.182,74,895

Before learned CIT(A) a number of grounds have been taken wherein the validity of demand notice, reopening of assessment under section 65, estimate of various properties, their valuation and treatment under section 13 charging of surplus under section 22 on sales of various properties etc. was challenged. The learned CIT (A) discussed in detail all the arguments of the assessee. He also found that the arrangements were only to do the business under the garb of the society. The main reliance was on the fact that the appellant failed to produce the basic registers required to prove the bona fides of the declared members of the societies who were allegedly involved in the so‑called conclusively non‑genuine transactions. He thus observed that the assessee has failed to discharge the burden of proof to various his case. The assessee's contention regarding bonds purchased by the appellant have also been discussed with reference to the order of the 1.T.0. He thrashed out this issue vide page 8 of his order. The same is reproduced here as under:‑‑

"The observations of the assessing officer on the bona fides of the affidavit furnished by the appellant are justified especially on the face of documentary evidence, available with the Department in the shape of agreements, to sell, which should have been duly signed by the appellant and the amount, with regard to the consideration of sale of property as also recorded therein. The so called members of the societies, (50% of which, while appearing before the assessing officer) have denied any investment or relationship with any such deals, thus, leaving the appellant remaining in the dock. The mere affidavits of the parties are not substitute of documentary evidence available with the assessing officer. In fact, the affidavits are in lieu of evidence, which cannot be held stronger than the evidence available with the Revenue Department in the given context.

Ground No. 8.

The Statement of one of the so‑called members of the Society Syed Fakhar ud Din Gilani, is reproduced as under:‑

"Here statement of one of the so‑called member Syed Fakhruddin Gilani is reproduced, which makes an interesting reading. He stated that he paid Rs.1.10,00 000 to Sheikh Aftab Ahmad. He stated as under:‑‑

(1)??????? That I and the assessee used to deal in property business.

(2)??????? That I paid this money to the assessee and not to any institution.

(3)??????? That no receipt was obtained and money was paid in cash.

(4)??????? This money was brought Pakpattan in vehicles and bodyguard

??????????? accompanied by.

(5)??????? That no membership form was signed by him.

(6)??????? That no shares were issued to me."

At serial No. 1, the attending witness has confessed that the appellant was the co‑proprietor dealing with the deponent. Secondly, he made payment to the appellant and not to any institution, no receipt was issued and money was paid in cash, which was brought from Pakpattan in vehicles; neither any shares were issued nor membership form signed 'by him. "

The basic question which requires adjudication by us, besides others, is whether Mr. Aftab Ahmad, is the real owner and that the society's incorporation was only a cover so as to hide the transactions. One factor which is very conspicuous and which I.T.O. has used in his favour is non?-availability of minutes book of the Cooperative Societies. Cooperative Societies are registered under Cooperative Societies Act and their function is subject to various provisions of the same. A huge Cooperative Department works under an independent Ministry normally headed by a Minister, assisted by Secretary Cooperatives. All the monitoring of the Cooperative Societies is through this Department.

The learned A.R. of the assessee Ch. Muhammad Saleem, first of all attacked simultaneous initiation of proceedings under sections 66(A) and 65. Service of notice under section 65 on which he said is received by Mr. Faizi, one of the employees of the assessee, relying upon the famous case of Muhammad Idrees Bari v. CIT(A), (1962) 15 Tax 105 SC, is also claimed to be illegal. He, said that the original notice was illegal as such superstructure thereon automatically crumbles to ground. When pointed out about the provision of section 154(6) the learned A.R. said that the same was not applicable in this case. In his opinion service of notice under section 65 at a different person than of the assessee had made the notice as without jurisdiction hence even if its compliance has been made the validity of the notice can still be challenged.

He also argued that issuance of notice incompliance to the directions of the CIT(A) is also illegal as he does not have any right to direct for reopening of the assessment under law. In his support he has relied upon judgments reported as 1992 PTD 1671 (SC), (1993) 68 Tax 59 (SC). The relevant para wherefrom is as follows:‑‑

"However, we may observe that simpliciter the factum that the I.T.O. has invoked section 65 of the Ordinance at the behest of the I.A.C. or somebody else would not render the notice invalid or infirm if he has applied his mind to the facts of the case before him independently and has formed his independent view. But if the I.T.O. has merely carried out the order of his superior and has acted mechanically in issuing of a notice under section 65, such a notice will be invalid. There is nothing on record to indicate that in the case in hand the I.T.O. has not applied his mind to the case or had a contrary view to that of the I. A. C."

The A.R. said that unless there was an order how could the department cancel the same. Reliance in the regard has been placed 1993 PTD (Trib.) 50. The relevant para. wherefrom is as follows:‑‑

"In the present case in the face of the fact that no legal order was based on the basis of which notice of demand could be issued under section 85 of the Income Tax Ordinance to the extent of additional tax levied, no legal liability was created against the assessee and as a consequence there was no default of tax, and therefore, no penalty could be imposed. The Karachi High Court in case CIT v. Malik Walayat Hussain & Sons Limited reported as 1987 PTD 249 has also taken somewhat similar view. One of the contentions before the High Court was that IT‑30 signed by the Assessing Officer would be considered as sufficient order in the eye of law which could be made a basis for issuance of notice for payment under section 29 of the repealed Income‑tax Act. The High Court repelled this contention and held that Form IT‑30 which was prescribed under Rule 20 of the Income‑tax Rules could not be a substitute for an order under subsection (8) of section 18‑A levying additional tax by way of penalty for non‑payment of advance tax under section 18‑A of the income Tax Act."

??????????? The next argument was regarding evidential value attached to photo copies of the registered deeds. The learned A.R. contends that photo copy is a secondary evidence. He also said that no efforts have been done by the department to obtain original copies of the same. He called photo copies to be of no evidential value. He relied upon PLD 1978 LHR 31. The relevant para. wherefrom is as follows:‑‑ ?????????

"There is also considerable weight in the findings of the learned Additional District Judge that the Local Commissioner had no right to take into consideration or to admit in evidence Exh.D.W.1/A 'on which he had relied. This document is at the most a photostat copy of a certified copy and not a certified copy. According to Shaukat Raza D.W.1 even the copy on record of the Settlement file to which Exh.D.W.1/A is a photostat was not a certified copy. It was also a photostat copy of the certified copy stated to be in possession of the police. No effort was made to prove the original copy. Even if it is assumed that the original application for allotment was missing for which there appears to be no warrant on this record, the Local Commissioner could allow the production and proof of the certified copy and not its photostat of another photostat of the certified copy.?

Relying upon the above citation he said that a photo copy cannot be considered as a valid evidence and infect it automatically becomes a case of no evidence. The fact of the same he said is that reopening of the assessment is without any "definite information" and liable to cancellation. Another limb? of arguments he adduced is regard use of the statements of the member of the society. He said that most of the statements were in favour while some were'' against him. He also said that there are some statements which are two‑fold being in favour of the assessee as well as against him. In his opinion it is a trite law t6t no evidence can be used against the assessee if the same has not been confronted to him. Without giving him the chance to cross‑examine the same. He said, this action of the department is not only against the above noted famous principle of law which has attained almost judicial authority but is also against the provisions of "Qanoon‑e‑Shahadat". He informed that assessee made a formal application for getting copies of the statement and in this regard also deposited a sum of Rs.1,000 as copying fee which is a matter of record. He said that this argument does not need any support but, however, for ready reference he would like to cite following two judgments:---

1993 PTI) (Trib.) 209 and PLD 1964 SC 536.

Learned A.R. pointed out that 'learned CIT(A) has thrown the burden of proof on the assessee which he said is not correct. He objected to the observation and called the same to be erroneous, illegal and misconceived. He said that it is the power of the I.T.O. to call for the witnesses under section 148 and record their statements. If the statement is against the assessee its usage without confronting him the contents' of the same is highly unjustified and the assessee cannot under any circumstances contradict the contents of the same unless he is not confronted with the relevant parts of such statement. By no confronting the same to the assessee he says it becomes no material and as such have no evidential value. He relied upon (1956) 30 ITR 182, 1974 ITR 94, 1991 SCMR 2300, 'the judgments referred above have expressed following principle of law which he says favour his contention:‑‑

??????????? (1956) 30 ITR 182

???????????????????????

"(ii) as the cash book of the appellant was accepted, and entries therein were not challenged, and neither further accounts nor? vouchers were called for and the persons who, gave the affidavits were not cross‑examined, it was not open to Revenue to challenge the correctness of the cash book entries of‑ the statements made in the affidavits. "

(1974) 94 ITR 93

"Held on the facts, that as no evidence was produced by the revenue to show that the amounts in question constituted the income of the assessee and as the veracity of the statements in the affidavits had not been challenged or disproved, the Tribunal was not justified in its conclusion that the amount was income liable to tax in the hands of the assessee. "

Advancing further he said that the assessee had submitted affidavits of various members of the societies. These affidavits have neither been gone through nor proved to be incorrect. He said that practical situation is that if a statement is not cross‑examined or the same is not confronted to be untrue, the presumption of law is that the same has been accepted by the department. He argued that on one hand the department does not allow to cross‑examine the witnesses which he wishes to use against the assessee. On the other hand, he does not give any weight to the affidavits filed by the members of the society which have direct connection with the root of the matter. He said that it was responsibility of the department to prove' that the amount invested for purchase of the impugned properties was given by the assessee which they have failed to discharge. All their additions and estimates are without any supporting evidence on the basis of presumption and surmises. To support his contention that the non‑contradiction of assessee witnesses in term of affidavits, gives rise to the presumption that the same have been accepted by the department. He referred following para. from 1991 SCMR 2300 in his favour:‑‑

"Omission to cross‑examine a witness on a material part of his evidence gives rise to inference that truth of his statement has been accepted. Such unchallenged statement of witness should be given full credit and usually accepted as true unless displaced by reliable, cogent and clear evidence."

The onus to prove that the assessee was the real owner, he reiterated, is on the department. The higher Courts, he repeated, have held in a number of cases that in the case of ownership in the name of some other person the burden to prove Benami is on the department. He referred to a judgment wherein the property purchased by wife of an assessee was considered as Benami. The judgment cited as relevant thereto is as under:‑‑

(1954) 26 ITR 349.

The next point agitated by him was regarding estimates and valuation of some properties. The sanctity of the registered document, he said, should not be disturbed unless some evidence contrary to the same is available. Reference has been given from the famous case of CIT Peshawar Zone Peshawar v. Messrs Siemen A.G. reported as PLD (1991) SC 368. The honourable Supreme Court in the above noted judgment has disapproved 3rd party intervention in mutually agreed contract between the two parties being against the laws of Islamic Jurisprudence. Reference has been made to the following para:‑‑

"The most important relevant Injunctions of the Qur'an are contained amongst other in Chapter Maida Verse (1) and Chapter Alisra's Verse (34) to the effect that the contracting parties are bound to fulfil their contracts. And that they would remain liable for any contraventions obviously both here and hereafter. There are very strong commands and have been enforced in various legal fields. Recently a major contravention regarding the law of pre?emption was resolved by the Supreme Court and this principle was also applied‑‑‑See the case of Said Kamal Shah PLD 1986 SC 360 at pages 381 and 418 seq. What was emphasized regarding prohibition against third party intervention in mutual contracts in the well ?established Sunnah Injunction is that: People be left alone in their mutually agreed transactions; ' so that they be blessed by Allah through free circulation of? (Wealth) amongst themselves; (Bokhari, Kitabul Baua No.3709; Abu Daud; Kitabul Ajara No.3442). When parties by mutual free consent enter into a valid contract, then the third parties have no right to intervene either to frustrate the contract or to change its nature (Government ' of? W.F.P. v. Said Kamal Shah 360 at 442). The question relating to exceptions has been dealt with separately on the basis of Islamic Principles of Zaroorat, Zarar, Public interest as such, State policy, State necessity etc. in the case of Land Reforms (Qazilbash Waqf v. Chief Land Commissioner PLD 1990 SC 99). As a necessary conclusion drawn from the foregoing it can be safely held in this case also that on the touchstone of Islamic Rules of Interpretation, which unless excluded otherwise, under the present Constitutional set up the Courts are bound to apply in preference to the contrary so‑called accepted rules of interpretation under the other jurisprudential concepts (and the fiscal laws are no exception in this behalf), the income‑tax authorities cannot change the nature of the contract intended by the parties thereto, under the pretext that the rule of interpretation of a fiscal law in this behalf, is different. "

He further relied on sections 1 and 2 of Qanoon‑e‑Shahadat as well as PLD 1960 (WP) 231.

The learned A.R. raised various objections on the method of giving decision by learned CIT(A) during the course of his arguments. He said that he ignored assessee's arguments and have tried to improve the order of the I.T.O. by giving his own findings. This he said is proved from the fact that the I.T.O. never considered the transaction to be Benami, but the learned CIT(A) called it so.

Agitating on the remarks of the learned I.T.O. regarding replacement of the wealth statement after changing its contents by the assessee, the A.R. said that the record is the responsibility of the I.T.O. The I.T.O. should not use such suggestion against the assessee as any such misappropriation could not be without the connivance of the departmental officials. If any such incidence has taken place it should have been brought to the notice of the higher authorities as well as to the concerned police station. Such an observation, the A.R. remarked should not be made which could not be proved.

Coming to the charge of tax he said that even if there was any unexplained investment or some gain on sale, the property belonged to the society and the same was exempt from tax on its transaction within the members. Reliance is placed upon (1991) 61 Tax 105 as well as (1992) 65 Tax 102.

Above citation in the case of Julian Hoshang Dinshaw .Trust and others v. I.T.O.

The Honorable Supreme Court of Pakistan in the above noted judgment held that the Income Tax Ordinance excludes under section 27 immovable property from the Capital Assets on transfer whereof the capital gain may arise. It further says that compulsory acquisition of any capital gain is not treated as Capital transferred for the purpose of computation of capital gain under section 28. The learned A.R. says that thus charge of tax on the capital against arising from the transfer from immovable property is beyond the taxing power of the Federation.

Coming to the status of the Cooperative Societies learned A.R. said that society has an independent entity and all its members contribute towards the welfare of the same. Even if it is presumed that the assessee has used the same as cover he still cannot be treated as owner of the same as every one has the right to decide his matters in his own way. Even if one considers it to be a cover it still should not be used against the assessee as for charging him to tax under the provisions of Income Tax Ordinance. He argued that there is no equity about tax. Planning to avoid the incidence of tax ‑is permissible under law. Every one has got the rights to arrange his tax matters in a manner so as to minimize the burden. Reliance is placed on 1987 PTD 720.

Coming to the issue on application of section 13 he said that this a period when law of double approval was applicable as the same found part in the Ordinance until 30th of June, 1992. Reliance is placed:

1987 PTD (Trib.) 300 = (1987) 55 Tax 119 (Trib.), 1989 PTD 150? (1989) 59 Tax 108 (Trib.), 1989 PTD 191, 1991 PTD 758 = (1991) 64 Tax 77 (Trib.) and 1993 PTD 1172.

He, however, stressed upon.1989 PTD 150 wherein not only that this point has specifically been thrashed out but additions made on the basis of same have also been cancelled being indeviation to the mandatory procedure laid down by the Income

Tax Ordinance.

?In view of his submissions and reported judgments he urged for cancellation of the orders.

Regarding plot situated at 112‑Main Gulberg, Lahore; measuring 5 Kanals and 17 Marlas for the assessment year 1990‑91 declared at Rs.62,00,000, he argued, is a residential property and the I.T.O. has made the addition relying upon a commercial plot of 12 Marlas in size.

The referred plot is on main road and the owner of the same is T.B. Association, which has constructed hospital on it for public utility while the impugned property is situated on the backside of the road and its link is with a side road. He said that not only the referred case is not a parallel case but even otherwise no notice for this addition has been given by the I.T.O. as was required under law He said that I.T.Os. own action of confronting the notice for Rs.1,75,000 per Maria and adoption @ Rs.80,000 is self contradictory. Relying upon (1995) 71 Tax 269. He said that there being no notice of addition for Rs.80,000 there was no question for the valuation against the declared of the assessee. He, therefore, urged deletion of the addition made at Rs.31,60,000 under section 13(1)(d).

The learned A.R. Ch. Muhammad Saleem, concluded the arguments to which Khawaja Muhammad Iqbal, endorsed in full with an additional point that in this case the Demand Notice has been received by the assessee on 27‑1‑1991 while the order was served two days after i.e. 29‑1‑1996. The learned A.R. has argued that service of demand notice which asks for payment of millions of rupees cannot be kept for 7 months by a revenue department. He said that the impression is clear. In fact the order was finalized much after the date mentioned therein. In his opinion the same is back dated just to bring it within the limit of 30th of June, 1995 after which the limitation to assess the case was over.

Finally, the learned A.R. said that if at all his arguments are not considered as strong enough to persuade the learned Tribunal for assessment year 1989‑90, and the decision of the Court is against the assessee, there does not remain any reason for addition in the subsequent years. The department has not only taxed the investment on purchase of property but have also charged to tax the profit accrued on the sale of the same. Now if the same is confirmed shall impress that the assessee is holding money in tangible form amounting to Rs.4,83,56,000. Having once confirmed this amount in 1989‑90 the subsequent additions again in 1991‑92 and 1992‑93 are not justified in any manner. The amount of sale is sizeable enough to cover all the subsequent investments including the addition made under section 13. He, therefore, urged cancellation of same in the subsequent years and also asked for the effect of the same for 1989‑90.

The learned Legal Advisor started his arguments by saying that the learned I.T.O. and CIT(A) has already elaborated the background of reopening of assessment and that who was actually working behind the scene. Coming to the points argued by the learned A.R. one by one he first of all said that definite information was available with the department and the proceedings were being initiated by I.T.O. separately under section 65 in addition to the notice issued by learned I.A.C. under section 66‑A. In favour of his point he made reference to the record of the Income Tax Department wherein prior to the instruction sent by learned CIT(A) the department's record proves initiation of the proceedings by I.T.O. He further said that the I.T.O. on receipt of complaint had fully applied his mind and it was only with regard to duplication of proceedings that the learned CIT(A) issued instructions. He, therefore, directed not to proceed under section 66‑A as there was ample evidence available in term of definite information to reopen the assessment under section 65. It was, as such not the instructions of learned CIT(A) but the facts on record that were base of initiation of proceedings under section 65. He narrated in detail a list of 25 different deals in respect of various properties purchased and in some cases sold by Mr. Aftab A. Sheikh, either in his own name or in the name of Cooperative Society. He also indicated some agreements to sell which have been signed by Mr. Aftab A. Sheikh in his individual capacity as a vendee. The details narrated by him are exhaustive and prove the involvement of the assessee in the transactions in various capacities. In fact learned A.R. has also not challenged this aspect of the case. He says that all transaction belong to the societies and assails reopening of assessment on the behest of the higher authority. We do agree with the principle that unless the I.T.O. has applied his mind independently not by merely obeying the order of the superior authority the provisions of section 65 cannot apply. But the facts of the case do not support the assessee. Not only that the definite information was available regarding transactions including signed by him in his own capacity but also that the I.T.O. had applied his mind independently much before the C. I. T. sent him the letter. The matter does not end here. In our opinion even if the D.C. would have initiated proceedings after the directions of learned C.I.T., there was ample evidence available on record to apply his mind independently and then reopen this assessment. The principle of law here as such is that if other requirements under law are available on record on the basis of which the I.T.O. believes and is in a position to establish that the reopening of an assessment is justified and this he does on pointing out by some higher authority, the notice cannot be considered as illegal. The Courts are meant to interpret the law in a manner that makes it workable and not to make it redundant.

While giving above findings we also get support from the order referred by learned A.R. of the assessee reported as (1992) PTD 1672 in the case of Messrs Al Ahram Builders v. Income Tax Appellate Tribunal, wherein Honourable Court has laid down following principle of law:‑‑

"However, we may observe that simpliciter the factum that the I. T.O. has invoked section 65 of the Ordinance at the behest of the I.A.C. or somebody would not render the notice invalid or infirm if he has applied his mind to the facts of the case before him independently and has informed his independent view."

The ratio of above para. is applicable in full force on the facts and circumstances of the present 'case, hence we confirm the reopening of the case after withdrawal of the proceedings under section 66(A).

The second argument is in relation to service of notice on the servant of the assessee, this has been claimed by A.R. The learned L.A. produced before us copy of the notice wherein the signatures obtaining are in the shape of initials and the same are apparently similar to the earlier part of the signatures of the assessee. The observation given by the notice server is that the signatures have been obtained through Private Secretary, of the assessee at the spot. The learned L.A. said that he was not allowed to enter into the room of the assessee and after getting them served on the assessee he returned them back to the process server. The Secretary of the assessee also confirmed to the process server that the same are initial of his boss. This observation is evident from the notice and the same has been narrated before us by learned Legal Advisor. The claim of the assessee that the same are not his signatures and that are of his servant is apparently not correct. The observation given by the notice‑server for the reason that cuts of the initial are similar to the signatures of the assessee we do not find ourselves with learned A.R. The A.Rs. argument that his client never initialed but always signed in ft4l is of no help to the assessee. Even if‑we accept for arguments sake that the same were signatures of the servant, we are still in agreement with learned L.A. that having complied with the same his jurisdiction cannot be challenged afterwards. The L.A. argued that this is where the provision of section 154, subsection (6) is fully applicable which is as follows:‑‑

"The validity of any notice issued under this Ordinance or the validity of service of any such notice shall not be called in question after the return in response to such notice has been filed or compliance thereto has been made."

In the impugned case the learned A.R. has amalgamated the jurisdiction of the notice and proper communication of the notice. It is not in dispute that the issuing authority had jurisdiction, hence the cases referred by learned A.R. are not applicable on the facts and circumstances of the present case. It is also not disputed that the assessee had complied with the same and the assessment is not ex parte. The only arguments is that the same was not served on the assessee himself hence was illegal. The Courts have already adjudicated upon the issue of jurisdiction of the notice and jurisdiction in the notice. There are many judgments of the superior Courts from which more relevant is PLD 1996 SC 1, wherein at page 48 of the report the late Mr. Justice Kaikaus dealing with the question of jurisdiction and wrongful exercise of jurisdiction observed, "It is necessarily involved in this provision that a Court acting illegally or with material irregularity is still acting with the jurisdiction, an illegality or irregularity in the exercise of jurisdiction is not the same as acting without jurisdiction." Then on the same page it was further observed, "if put the matter in my own words I would say that if a dispute be in the proper forum then the fact that illegalities are committed in the determination of the dispute does not render the proceeding without

jurisdiction".

The learned L.A. also gave reference to few judgments but he however, mostly relied upon PLD 1989 SC 503. It has been argued that if by conduct it appears that the notice has been served one cannot challenge the service of a notice at a subsequent stage.

Relying upon above discussion we hold that the notice was properly served and the assessee having complied with the same cannot challenge the validity of the notice at this stage. The only objection one could raise was on jurisdiction of the original notice which is not disputed in this case. The provision of section 154(6) is fully applicable here and we reject A.Rs. plea on this score too.

The next argument of learned A.R. is usage of evidence against the assessee without confrontation. The learned Legal Advisor pointed out from the record that it was not department's evidence but the evidence of the assessee himself. He produced list of members of the societies to the department as his evidence. They were his witnesses who opted to tell the truth. It was not an evidence collected by the department at the back of the assessee as such, no formal confrontation was required. In this regard he brought our attention to page 9 of the order of the.I.T.O. wherein following observation has been given by him:‑‑

"(1) The list provided by the assessee did not tally with the list obtained from the office of the Registrar Cooperative Societies. Therefore, it was all the more important to check the genuineness of the members, Assessee was requested, therefore, to provide the Register of Members, which he did not. Nonetheless, letters were written to the members of this list. It is interesting that even some of the members out of the list provided by the assessee whose names are given hereunder declined any investment in these societies:‑‑---

(1) Mr. Shoukat Farooqi.

(2) Mr. Muhammad Asif Ali,

(3) Mr. Muhammad Ashiq, Mufti son of Tajuddin, Time Keeper in Hassan Aftab.

(4) Mr. Iqbal Shafi.??????????????????

(5) Mr. Muhammad Afzal.???????

(6) Mr. Ali Shah, Clerk in Zafar Textile.???????????????????????

(7) Mr. Muhammad Fahim.??????????????????

Some of the members whose names are also given here under filed affidavits stating that they have made investment in the societies:‑‑

(1) Mr. Muhammad Iqbal,

(2) Mr. Munir Ahmad,

(3) Mr. Bashir Ahmad,

(4) Mr. Faiz Muhammad,

(5) Mr. Muhammad Tufail,

(6) Mr. Muhammad Ali.

(7) Mr. Syed Ghulam Dastagir Shah,

(8) Mr. Muhammad Rafiq Khan.

Their affidavits cannot be relied upon because of their poor evidential value, which is discussed as under:‑‑

(i)???????? Their names are conspicuous by their absence in the list obtain a from office of the Registrar.

(ii)??????? Register of members not produced to verify the later additions, to the members list

(iii)????? Agreements, receipts, vouchers etc. showing the purpose of the money advanced not produced.

(iv) ???? Original books of accounts which were of fairly large size with each page printed with the name of the societies and written by the then Accountant not produced to check the receipt of money.

(v) ????? Without prejudice to the above observation that they were not the members even otherwise the evidential value of the affidavits, filed by some of the so‑called members as stated above is dubious. For, it is evident that these have been filed in connection with Income Tax assessment proceedings of the assessee. At the material times of deposit of money neither any contract was signed nor any receipt ‑was issued as has been admitted by the A.R. of the assessee in the case of Mrs. Nasreen Aftab and Mr. Hassan Aftab."

The above statement again makes it clear that there was no actual existence of any society, the learned L.A. commented. He, therefore, said that the sanction of Qanoon‑e‑Shahadat was not applicable in this case and the confrontation was also not required. He relied upon PLD 1979 SC 949, wherein the Honourable Supreme Court of Pakistan disagreed with the contents of certificate produced by an actress from some producer. It was held by Honourable Supreme Court of Pakistan that the same could not be accepted unless they were with supporting evidence in term of agreements etc. Relying upon the same he said that the statements and affidavits furnished by the assessee being without any supporting document there was no need of asking for another unnecessary round of confrontation etc. The learned L.A. then moving to the other points said that the circumstantial evidence which includes 23 to 24 registered and unregistered documents amply makes it clear that the assessee entered into this transaction. He accepted that it was department's job to prove the burden and remarked that they have done it satisfactorily. He also commented that the learned A.R. is not fair in calling the photo copies to be as of no evidence. He said that presumption of law is in favour of the assessee. It is true that photo copy cannot be equated with the original but correctness of the documents is not denied by the A.R. of the assessee, either at subordinate stage or at any point before the I.T.A.T. Moreover, the conduct of the assessee in this regard is not clean. He wants benefits of his own doing. He should have produced originals as at quite a number of times it was requested by the I.T.O. for the same. He also argued that the official acts which are presumed to be regular cannot be denied. The reference is made to 1993 SCMR 956. He said that not only the assessee was successful in hiding original registered deeds but also intentionally not produced document which could help building a better order, in term of minutes book of Executive Committee and that of the General House etc. besides other relating documents of the society.

Regarding next argument that sanctity is attached to registered deed and the same cannot be disbelieved without there being some evidence, he said that it was conduct of the assessee which lead the department towards estimates. It being a case of no evidence as original documents have not been forwarded by the assessee besides various efforts. He said that as already repeated the affidavit submitted by the assessee is of the person whose names?????????? are not available with the Circle Registrar as member of the society. They were never issued any shares and there was no documents to establish as to where and how they were made members of this society. The most important factor which settles this controversy is affidavit of the major so‑called subscriber who gave different statements at the different occasions. His affidavit speaks as follows:‑‑

"Affidavit of:

Syed Fakhar‑ud‑Din Gilani son of Syed Khadim Hussain Gillani, resident of Basti Peer Ghulam Qadir, Tehsil and District Pakpattan Sharif on oath.

The above‑named deponent solemnly states on oath in the name of? Allah Almighty as follows:‑‑

(1)??????? That I deposited Rs.1,10,00,000 in Gold Star Cooperative Society 71‑B/C 2, Gulberg II, Lahore.

(2)??????? That I am an active member of the Gold Star Cooperative Society since past many years.

(3)??????? That the Gold Star Cooperative Society is being managed by Mian Aftab Ahmad Shaikh, who is also Chairman of the Society.

(4)??????? That I alongwith other members of the Society authorised Mian Aftab Ahmad Shaikh to purchase Urban as well as Rural Immovable Properties from the sellers through any mode he should prefer.

Whatever has been stated above is correct and nothing has been concealed by me.

?(Sd.)

??????????????????????? ??????? Deponent

?????????? ?????????NIC No.270‑89‑030592

Verification

Verified on oath at Pakpattan Sharif this 17th day of April, 1993 that the contents of the above affidavit are true to the best of my knowledge and belief and nothing has been withheld or misrepresented.

(Sd.)

??? Deponent. "

In his statement recorded under section 148 he has, deposed as follows:‑‑ .

The contradiction is evident. In affidavit he claims to be member of Gold Star Cooperative Housing Society while in statement under section 148 not only he says that he is member of Cooperative House Building Society but also denies knowledge of the society whose active membership he affirms on solemn affirmation. The person on whom the assessee places more than 50% reliance in his support has proved to be bogus. In such circumstances ignorance of affidavits and non‑confronting of the statements cannot be considered as an illegality to render the assessment as void. Even otherwise it was very well within the knowledge of the assessee that his witnesses have denied being members of any of the society as learned I.T.O confronted him through letter, dated 24‑5‑1995. Further, claim of conformation is a surprising argument.

Speaking about the argument that I.T.O. has not used the word' Benami', he argued that I.T.O at page 9 of his order has considered this amount to be a fake transaction. Simply not using this word cannot make the observation as incorrect or against the requirement of law.

The learned L.A. argued that the case of A.G. Siemen and Siddique Plaza reported as 1991 PLD 368 SC and (1996) PTD 905 respectively are distinguishable. In the present case assessee has made his best efforts to conceal his transactions under the shelter of the societies and in this way he has made this contract with unclean hands, which is against the spirit and Injunctions of Islam and also give the impression that the figure agreed was incorrect. Exemption of capital gain, he said is also not applicable in this case. In his support he has referred (1995) 72 Tax 197 Trib, relevant para wherefrom is as follows:‑‑---

"However, in the case of single transaction which is not in line of an assessee's business heavy burden lays upon the Revenue to tax the surplus arising out of it but where there are more of them, six in a row in a year both outgoing and incoming with .a number of other still being available on the shelf, an equally heavy burden lies upon the assessee to establish that these were not in the nature of trade. The assessee in his case has not been able to discharge the burden. In all such like cases what Revenue needs to bring home is a systematic effort on the part of the assessee to employ his capital in the pursuit of gain or profit. The assessing officer has successfully done it. No controverting evidence has been brought on record to say that purchase of properties was simply an investment made with an intention of earning income from rent etc. or that their disposal during the period was on account of some compulsion. No such defense was apparently possible in this case as simultaneously with the disposal of some of the stocks in trade an equal quantity, presumably lower in value, was upholstered in a calculated manner. When a number of transactions are involved, as in this case, the initial burden on the Revenue is automatically discharged and it becomes necessary for the assessee to establish the contrary that he never had an intention to involve in a regular or orderly conduct of the activity to gain profit. "

He, further argued that totality of circumstances determine the fate of a case. At times more than one transactions may not be and even one transaction may be considered as an adventure in the nature of trade. In fact it is not the cooperative society which is impugned before us. It is assessment of an individual who is admittedly doing the business of purchase and sale of properties and the circumstances of the case are against the assessee.

He said that judgment referred by learned A.R. as (1995) 71 Tax 269 Trib. is also distinguishable and the same does not give any finding regarding double approval and only deals with the issue of notice to show cause under sections 13(1) and 12(2). .

The arguments of learned Legal Advisor are forceful and we are in full agreement with him. The cases relied upon by learned A.R. and issues framed are not relevant with this case. The assessee has tried to cover the transactions under the garb of the incorporation of the Cooperative Society. In our opinion this is a case where the veil of incorporation can be lifted for finding as to who is the actual person dealing behind.

The facts of the case are so clear in its impression that we cannot help but hold that the arrangement is of no help to the assessee. The people who have been shown as members were so weak that they could not stand even before the I.T.O. The Cooperative Society might have been registered much earlier but there is nothing on record to establish that the same worked in the true cooperative spirit. Even the Secretary who under Cooperative Societies Act is the most powerful man was a bogus appointment, hence we cannot agree with the learned A.R. of the assessee to the extent that the properties belonged to the society and the assessee have got nothing to do with them. We, therefore, confirm the treatment of the subordinate officers to this extent that the assessee was owner of the properties for all purposes and all the transactions made by him either in his own name or in name of the society were his personal transactions. The affidavits of the so‑called other members are also of the no help as they claim being member of Gold Star Cooperative Society which has been incorporated in May, 1989 much after the major transactions of assessment year 1989‑90.

Regarding service of Demand Notice, the learned Legal Advisor said that the order was served on the assessee two days, after the service of IT‑30 and Demand Notice. He admitted that it was mistake on the part of the clerical staff or the notice server who perhaps left the order in the file and only picked other documents. Question of preparing the order within two days after service of the demand notices not possible, he added. He said that the order was passed on 29‑6‑1995 and there is no tangible evidence to prove that the same was passed on a subsequent date. To us keeping the order in kitty for almost about 7 months is surprising. It cannot be considered as inadvertent as called by the learned L.A. However, there ' is nothing in support otherwise that the same never existed on the date of the finalization on 29‑6‑1995. It does create suspicion, but we are not in a position to conclude in the absence of some tangible evidence in this regard that the case was not finalized within the limitation of time hence the action of the subordinate officer is maintained.

The learned A.R. of the assessee in his concluding part tried to take refuge in the judgment 1996 PTD 130, 209 ITR 52, wherein he said that the Honourable Court has held that by way of delay the determination of tax liability has been taken place after 30‑6‑1995, the date on which the limitation to assess this case was over. We, however, are not in agreement with him in the absence of any other documentary evidence.

In view of above discussion we would like to dispose of the case on yearly basis. The arguments not disposed of shall find place hereafter:‑‑ .

Assessment year 1989‑90.

After having held that the assessee in this case is real owner of all the properties and all the investments have been made by him, we hold that the investment made by him during the impugned year 1989‑90 have been rightly added in the income of the assessee and we confirm the same in keeping view the arguments. In this regard the sale price of land taken at Rs.4,22,04,750 also being as declared by the assessee the profit earned thereon taxed at Rs.2,63,04,750 is fully justified. We maintain this addition too. Similarly the profit earned on Shish Mehal property is not disputed. The only issue is with regard to its taxability which is also established as the assessee is regularly involved in the purchase and sale of the property. The treatment given by the subordinate officer with regard thereto also stands confirmed.

For the same reasons the profit earned at Rs.2,53,000 from sale of land at Thokar Niaz Baig, is also confirmed by us.

This is where we should revert back to the arguments taken by the A.R. regarding effect of confirmation for 1989‑90. Not only that the assessee is entitled to the effect of additions in 1989‑90 but also of its adjustment in the subsequent years. He said that on confirmation of an amount of Rs.4,83,56,000 in the first year the assessee is entitled to its effect in the subsequent year wherein the addition of Rs.93,60,000 for the assessment year 1990‑91 Rs.1,71,45,200 for 1991‑92 and Rs.29,00,000 for 1992‑93 has been made. These amounts have been confirmed by learned CIT(A) without appreciating the arguments advanced by A.R. Regarding adjustment of funds assessed, it is noted that the assessee sold following two properties during the year:‑‑

(1) ?????? Shish Mahal Hosiery,

(2) ?????? 411 Kanals 17 Marlas land at Chung on 11‑5‑1989.

Since the property at Thokar Niaz Baig has been purchased by him prior to 25‑6‑1989 when the above properties are sold, no adjustment is available for 1989‑90. The appeal for 1989‑90 as such is disposed of accordingly.

Assessment years 1990‑91 1991‑92 and 1992‑93.

The additions during the year amounting to Rs.93,60,000 for 1990‑91 Rs.171,45,200 in 1991‑92 and Rs.29,00,090 in 1992‑93 in totality are lesser than the amount available with the assessee as on 30‑5‑1989 in term of additions confirmed by us at Rs.4,83,56,000 was available with him for further investments. The additions made in respect of the assessment years 1990‑91 to 1992‑93, being covered by the amount of Rs.4,83,56,000, as discussed above, are deleted. The assessee gets relief of Rs.93,60,000. in 1990‑91 Rs.171,45,200 in 1991‑92 Rs.29,00,000 in 1992‑93. All other points of the assessee as argued by learned A.R. are disapproved including addition of Rs.1,45,950 on account of sale of plot for 1992‑93 being an adventure in the nature of trade. Order accordingly.

H.B.T./512‑T????????????????????????????????????????????????????????????????????????????????????? ? Order accordingly.