SAJI ENTERPRISES VS MANZOOR HUSSAIN
1999 P T D 2762
[Lahore High Court]
Before Najam-ul-Hassan Kazmi, J
EN-EM STORES (PVT.) LTD.
Versus
COMMISSIONER OF INCOME-TAX and others
Writ Petition No.22812 of 1998, decided on 24/11/1998.
Income Tax Ordinance (XXXI of 1979)---
----S.148---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Report of official---Right of cross-examination to assessee-- During the course of assessment proceedings, Assessing Officer used the reports of officials/Commission without allowing assessee an opportunity to cross-examine them---Validity---Report of any Commission or any functionary could not be used against a party, unless opportunity to cross- examination was allowed ---Assessee, therefore, was to be allowed an opportunity to cross-examine the officials who prepared the report before such report could be used against the assessee.
Sh. Zia Ullah for Petitioner.
Kh. Muhammad Saeed for Respondents.
Date of hearing: 24th November, 1998.
JUDGMENT
The proceedings for assessment of petitioner for the years 1996-97 and 1997-98 are pending with respondent No.4. Team of Income-tax Officers, comprising of Inspecting Additional Commissioner of Income-tax, two Deputy Commissioners and three Assistant Commissioners of Income -tax and six Inspectors of Income-tax, raided the General Store of petitioner where some unpleasent events are stated to have taken place. It is claimed, that in the course of assessment proceedings, the respondents were making use of the inventory reports of those officials without allowing the petitioner with an opportunity to cross-examine. It is added that the petitioner asked for copies of certain documents and though some of the documents have been supplied yet, document mentioned at Serial No.l of letter dated 3-9-1998, Annexure 'C' was not supplied.
2. In this Constitutional petition, the petitioner claimed three-fold reliefs, namely, transfer of proceedings, supply of documents and opportunity of cross-examination to the officers who prepared the stock inventories.
3. Learned counsel for the petitioner submitted that he will not press for the relief of transfer nor he would insist for the transfer of pending case before respondent No.4. It was argued that the higher officers, in the Tax Department, could give instructions to the subordinate, in the matter of inquiry but nevertheless, the petitioner has right to examine those letters with a view to satisfy that the authority was not transgressed. 1t was added that the inventory report being just like of commission report cannot be used unless the petitioner is allowed to cross-examine the authors. Learned counsel submitted that the provisions of Qanun-e-Shahadat Order would apply to the proceedings under the Income Tax Ordinance and that the Adjudicating officer being quasi-judicial authority is competent under section 148 of the income Tax Ordinance to summon witnesses.
4. Learned counsel for the respondents submitted that the respondents have no objection to the supply of copies of the documents, asked for. It was argued that the respondent, at present were considering the request of the petitioner for preparation of fresh Stock Inventory, through a responsible person and, therefore, the petitioner cannot presently press for the demand of cross-examination. Learned counsel submitted that the petitioner previously suggested the name of Mr. Masood Chartered Accountant which was later withdrawn. It was argued that if the fresh stock inventory is not prepared and the assessment of stock inventory is relied then the request of the petitioner for examination of those officers would be considered in accordance with law.
5. After hearing learned counsel for the parties, it is observed, that the respondents do not seriously object to the supply of documents. This being so, copies of the documents asked for shall be supplied to the petitioner, without any delay.
6. As regard the Stock Inventories prepared by certain officials of the Income Tax Department, there appears to be substance in the submission of petitioner that the petitioner should be allowed an opportunity to put certain questions, to the author of the Stock Inventory, if their reports are to be used against the petitioner. Obviously, no one can be condemned unheard. The Adjudicating Authority, is fully competent under section 148 of the Income Tax Ordinance, to summon the evidence. Even otherwise, it is a settled rule of law that the report of any commission or any functory, cannot be used, detrimental to the interest of party, unless the opportunity of cross -questioning is allowed.
7. It appears that at this stage, the respondents are considering the question of appointing some impartial person, for fresh stock inventory. If this course is adopted then there may not be any possible necessity of summoning the official, who has earlier prepared the stock inventory of the assets of the petitioner as stock inventory report will not be used against the petitioner. However, if fresh stock inventory is not prepared, -and the document relies on early stock inventory report, then the petitioner will be allowed with an opportunity to cross-examine the officials who prepared the report before report can tie used adverse to the petitioner.
8. This petition is disposed of with the above observations.
C.M.A./E-17/L Petition disposed of.