I. T. A. NO. 7561/KB OF 1992?93, DECIDED ON 31ST DECEMBER, 1997 VS I. T. A. NO. 7561/KB OF 1992?93, DECIDED ON 31ST DECEMBER, 1997
1999 P T D (Trib.) 426
[Income-tax Appellate Tribunal Pakistan]
Before Aftab Iqbal Rathore, Accountant Member
I. T. A. No. 7561/KB of 1992-93, decided on 31/12/1997.
Income Tax Ordinance (XXXI of 1979)---
----S.129---Appeal to the Appellate Commissioner---Notice---Commissioner of Income-tax (Appeals) passed order/proceeding ex parte without serving notice to appellant---Validity---Appeal was remanded by Appellate Tribunal for de novo consideration and disposal on merits by the Appellate Tribunal.
Abdul Tahir, I.T.P. for Appellant.
Amjad Malik, D. R. for Respondent
Date of hearing: 25th November, 1997
ORDER
This appeal at the instance of the assessee for the assessment year 1990-91 is directed against the order of the learned C.I.T.(A), dated 23-5-1997. The appellant agitates the ex parte disposal of the appeal by the learned C.I.T.(A). In addition the appellant also agitates the estimate of sales and rate of gross profit.
2. Heard Mr. Abdul Tahir, I.T.P., the learned representative of the appellant and Mr. Amjad Malik, learned D.R.
3. Briefly the facts giving rise to this appeal are that assessment in this case was framed under section 59(1). Later, an account in U.B.L. was discovered by the Department. The deposits made in this bank account during the year were Rs.9,80,598 whereas the assessee had, as per trading account filed with the return of income, declared sales at Rs.3,25,000 only. It was concluded that the assessee had concealed particulars of income and, therefore, proceedings were initiated under section 65 of the Income Tax Ordinance. Against the declared income of Rs.30,300 the I.T.O. determined the total income of the assessee at Rs.1,38,000. The assessee went in appeal before the learned C.I.T.(A) who dismissed the appeal ex pane as the assessee did not appear to contest the appeal.
4. The learned A. R. states that the learned C.I.T.(A) was not justified to proceed ex parte for the reason firstly that notice from the C.I.T.(A) office was not received by the appellant assessee communicating the date of fixation of the hearing of appeal. It is submitted that there is no mention in the impugned order that the notice was issued and was also served on the appellant or his authorised representative. Secondly, it was submitted that on the alleged date of hearing i.e. 23-5-1992 15 appeals of the authorised representative were fixed for hearing before the learned C.I.T.(A). The learned A.R. contended, if he could appear in 15 appeals why should he refrain from appearing in the appeal of this appellant. It was pleaded that the notice in the appeal of this appellant was never served on the appellant or authorised representative. The ex parte order of the learned C.I.T.(A), it was argued, was therefore, legally not sustainable. The learned D.R. could not rebut the submissions made by the learned A.R.
5. I have considered the submissions made by the learned A. R. and I tend to agree with him. The merits of assessment which are also agitated are therefore, not being discussed and adjudicated upon in this order. I am of the opinion that the learned C.I,T.(A) for the reasons submitted by the learned A. R. was not justified in proceeding ex parte to dispose of the appeal of the appellant-assessee. This appeal is, therefore, remanded back to the learned C.I.T.(A) for de novo consideration and disposal on merit.
C.M.A./3/TribCase remanded