I.T.AS. NOS. 344/KB TO 346/KB OF 1998-99, DECIDED ON 15TH MARCH, 1999. VS I.T.AS. NOS. 344/KB TO 346/KB OF 1998-99, DECIDED ON 15TH MARCH, 1999.
1999 P T D (Trib.) 2946
[Income-tax Appellate Tribunal Pakistan]
Present: Muhammad Mujibullah Siddiqui, Chairman
I.T.As. Nos. 344/KB to 346/KB of 1998-99, decided on 15/03/1999.
(a) Income Tax Ordinance (XXXI of 1979)---
----S.111---Penalty---Concealment of income---Appeal against restoration of original assessment order and deletion of penalty levied under S.111, Income Tax Ordinance, 1979----No separate appeal was filed against order deleting penalty---Validity---Appeal was treated against order deleting the demand raised through assessment framed under S.62/65 of the Ordinance and restoration of assessment order---No appeal, thus, could be deemed to have been preferred against order imposing penalty under S.11 Income Tax Ordinance, 1979.
(b) Income Tax Ordinance (XXXI of 1979)---
----Ss.65 & 62---Additional assessment---Change of opinion---Assessment was completed under S.62, Income Tax Ordinance, 1979---Additional assessment was made on basis of certificate available on record regarding the commission, marketing allowance and freight received which was not considered at the time of assessment---Validity---In view of availability of information in the assessment record, there was no question of receiving any information or coming into the possession of Assessing Officer after the completion of assessment---Such would be' a clear case of change of opinion---Appeal against restoration of original assessment order by the First Appellate Authority was dismissed by the Tribunal.
Abdul Aziz Memon, D.R. for Appellant.
Abdul Tahir, I.T.P. for Respondent.
Date of hearing: 13th March, 1999.
ORDER
The above appeals at the instance of department are directed against the order, dated 19-9-1998 by the learned A.A.C. of Income-tax, Sukkur Range, Sukkur. By above order the learned A.C.C. disposed of three appeals against the order under section 62/65 and another three appeals against the penalty order under section 111. The learned A.A.C. deleted the demands raised through assessment framed under section 62/65 and restored the original assessment orders. The learned A.A.C. further deleted the penalties levied under section 111, in consequence of the demands created under the orders under section 62/65. The department has preferred three appeals only against the disposal of six appeals by the learned A.A.C. as narrated above. The learned counsel for the respondent has raised preliminary objection contending that separate appeals were required to be filed against the orders deleting the penalties. The objection is held valid. The appeals preferred at the instance of department are treated as against the orders deleting the demands raised through assessments framed under section 62/65 and restoration of assessment orders. It is held that no appeals have been preferred against the orders imposing penalties under section 111.
2. Coming to the merits of the case the common facts are that the assessment order for the assessment year 1992-93 was completed under section 59(I) while the assessment orders for the assessment years 1993-94 and 1994-95 were completed under section 62. The assessee is a registered firm and after completion of assessment orders the Assistant Director, Inspection and Audit (Direct Taxes Sukkur) pointed out that the assessee has declared only commission from M/s. Exxon Chemical Pakistan Limited and marketing allowance/freight received by the assessee has not been offered to tax. In the assessment year 1993-94 the Assessing Officer has further observed that the audit party pointed out 'that commission from M/s. Hoechest Pakistan Limited on sales of presticide was also not subjected to tax. On the basis of this information the Assessing Officer reopened the assessment under section 0 and made additions to the total income observing that the Authorised Representative of the assessee had agreed with the contention of department. The assessee assailed the assessment orders framed under section 62/65. It is contended before the learned A.A.C. that the certificates issued by Engro forming basis of reopening were already produced before the Assessing Officer which were examined and placed,; on record. Copy of the certificates duly attested by the Assessing Officer were produced before the learned A.A.C. and it was contended that in view of the availability of relevant information on record, it was a case of change of opinion. It was submitted that no facts were concealed and the facts and documents were duly filed at the time of original assessments. The counsel of assessee further denied any agreement for additions as observed in the assessment order and produced copies of order sheet in support of his contention. On perusal of record the learned A.A.C. observed that certificates of M/s. Engro, mentioning different types of receipts such as commission/marketing allowance and freight etc. were already conceded by the Assessing Officer and he has issued an attested copy of the documents also. He, therefore, agreed that it was a case of change of opinion. He further observed that the record is totally silent in respect of any agreement on the part of A.R. of the assessee for agreed additions. The learned A.A.C. consequently deleted the demand created through assessments framed under section 62/65, restored the original assessments and deleted the penalties under section 111.
3. The learned D.R. has submitted that although the certificates were available on assessment record but they were not considered by the Assessing Officer and, therefore, it is not a case of change of opinion. I am not persuaded to agree with the submission because in the wake of availability of information in the assessment record there is no question of receiving any information or coming into the possession of Assessing Officer, after the completion of assessments. I am of the considered opinion that in view of the admitted facts it is a clear case of change of opinion and, therefore, the impugned finding of learned A.A.C. is not open to any exception. The appeals at the instance of department are without substance, which stand dismissed accordingly.
C.M.A./68/Tax(Trib.)?????????????????????????????????????????????????????????????? Appeals dismissed.