Income Tax Ordinance (XXXI of 1979)---

----Ss. 62 & 55---Double taxation ---Assessee resisted assessment on the ground that lease income had been assessed in the respective hands of original owners and proceedings in the case of A.O.P. were unwarranted and unjustified because property on lease had been purchased by four members of the family in the year 1990-91---Validity---Income from lease in the year 1991-92 had also been assessed in the hands of the owners of the property in their individual assessment---Not only the earlier assessments of two owners were not cancelled but the two other owners were also assessed in respect of income from lease---Assessment of A.O.P. was a case of double taxation in circumstances, which was unwarranted by law---Assessment in the case of A.O.P. was, therefore, cancelled.

M. Iqbal Bhatti, A.R. for Appellant. Mian Qasim Ali, D.R. for Respondent.

Date of hearing: 4th April, 1997.

ORDER

In the two appeals by an AOP assessment under section 62 and penalty imposed under section 108 in respect of assessment year 1991-92 are being challenged.

2. For the year under appeal, return had been filed under protest and assessment proceedings had been resisted on the ground that lease income had been assessed in the respective hands of the individual owners and proceedings in the case of the AOP were unwarranted and unjustified. The ITO, without disposing of the objection, assessed the undisputed amount of lease in the hands of the AOP and also imposed a penalty of ks.5,000 for default of section 55. It was pointed out by appellant's Authorized Representative that the property in question i.e. a flour mill which was already on lease had been purchased by 4 members of the family during assessment year 1990-91. Income from lease had been assessed in the hands of the owners of the property in their individual assessments for assessment year 1990-91. For assessment year 1991-92 also income from lease had been taxed in the case of the two of the owners Mr. Muhammad Siddique Khan and Muhammad Khan before the assessments in the case of the AOP whereas in the case of two other partners lease income had been assessed in their respective assessments which were made after the assessment in the case of the AOP. The fact remain that the same income was assessed twice. Such treatment had been held to be illegal by the Supreme Court of Pakistan in a judgment. which was also quoted by the CBR in Income Tax Manual, Part V, Manual of Instructions, Third Edition, page 61.

3. In this case not only the earlier assessments of two owners were not cancelled but the two other owners were also assessed in respect of the income from lease. Assessment of the AOP in respect of the same income was a case of double taxation which is unwarranted by law. The assessment in the case of the AOP is, therefore, cancelled.

4. In view of the cancellation of the assessment, penalty proceedings also become infructuous. Penalty order under section 108 in respect of assessment year 1991-92 is also cancelled.

5. Both the appeals are succeeded.

C. M. S./420/Trib. Order accordingly.