MUKHTAR HASSAN RANDHAWA VS COMMISSIONER OF INCOME-TAX, COYS ZONE-1, LAHORE
2001 P T D 2593
[Lahore High Court]
Before Nasim Sikandar and Jawwad S. Khawaja, JJ
Dr. MUKHTAR HASSAN RANDHAWA
versus
COMMISSIONER OF INCOME‑TAX, COYS ZONE‑1, LAHORE
P.T.R. NO‑44 of 1996, heard on 03/04/2001.
(a) Income Tax Ordinance (XXXI of 1979)‑‑‑
‑‑‑‑S. 136‑‑‑Reference to High Court‑‑‑Scope‑‑‑Every question of law was not needed to be referred to the High Court and only a question having some substance needed to be so referred.
Rajput Metal Works Ltd., Gujranwala v. CIT, Rawalpindi 1976 PTD 119; Shaikh Ghulam Shah v. Income‑tax Officer West Zone and 2 others 1986 PTD 32; Pakistan Educational Society, Karachi v. Government of Pakistan 1993 PTD 804; Messrs Irum Ghee Mills Ltd. v. Income‑tax Appellate Tribunal and others 2000 SCMR 1871 and Messrs Sultan Textile Mills Ltd. v. CIT Central, Zone‑A 1990 PTD 241 distinguished.
CIT v. Messrs Imminan International, Lahore C.T.R. No.20 of 1991 and The Lungla (Sylhet) Tea Co. Ltd. v. Commissioner of‑Income‑tax Dacca Circle, Dacca 1970 SCMR 872 ref.
(b) Income Tax Ordinance (XXXI of 1979)‑‑‑
‑‑‑‑S. 136‑‑‑Reference to High Court‑‑‑Scope‑‑‑"Question of law"‑‑ Connotation‑‑‑Point of 'law could not be equated with the expression "question of law "‑‑‑Question referred must be a disputed or disputable question of law‑‑‑Reference to the High Court was meant only for problematic or debatable questions and not an obvious or simple point of law.
CIT v. Basanta Kumar Agarwalla (1983) 140 ITR 418 ref.
Rajput Metal Works Ltd.,' Gujranwala v. CIT, Rawalpindi 1976 PTD 119; Shaikh Ghulam Shah v. Income‑tax Officer West Zone and 2 others 1986 PTD 32; Pakistan Educational Society, Karachi v. Government of Pakistan 1993 PTD 804; Messrs Irum Ghee Mills Ltd. v. Income‑tax Appellate Tribunal and others 2000 SCMR 1871 and Messrs Sultan Textile Mills Ltd. v. CIT Central, Zone‑A 1990 PTD 241 distinguished.
Mian Ashiq Hussain for Petitioner.
Muhammad Ilyas Khan for Respondent.
Date of hearing: 3rd April, 2001.
JUDGMENT
NASIM SIKANDAR, J.‑‑‑Through this reference application under section 136(2) of the Income Tax Ordinance, 1979 an individual assessee of the Income Tax Department engaged in medical profession claims that following question of law have arisen out of the order of the Tribunal recorded on 18‑9‑1995:‑‑‑
"(a) Whether there was definite information based on material evidence with the ITO to take out the case from the right of self‑assessment under para. 4(II) of the Self‑Assessment Scheme?
(b) Whether the ITO could recommend the case for application of Para.4(II) of SAS without first confronting the assessee the material evidence with him even if there is no provision in SAS to provide the opportunity?
(c) Whether the estimate of private practice is based on some basis and manner of computation needed by section 32(3) or it is just random estimate not permissible in law?"
2. For the assessment year, 1992‑93 the petitioner returned an income of Rs.1,65,907 from profession and salary. The Assessing Officer found that the case of the assessee was not covered by Self‑Assessment Scheme introduced for the assessment year. By referring to para.4(II) of the Scheme he concluded that out of total amount of zakat paid at Rs.31,425 a sum of Rs.20,000 was claimed to have been given to certain charitable institutions which did not fulfil the legal requirements. Finding that if that portion of claimed zakat was disallowed the income of the assessee for the year exceeded Rs.2,00,000, and therefore, did not qualify to avail benefit of Self -Assessment Scheme. After usual proceedings, the total income of the assessee for the year was computed at Rs.6,50,000.
The assessment order was so on 19‑7‑1993 was assailed with partial success inasmuch as the CIT (Appeals) reduced the number of patients visited every day. Also rate of professional charges per operation was slashed to some extent. The objection of the assessee against selection of case for total audit under the aforesaid para. of the Scheme was, however, rejected.
3. On further appeal the Tribunal also refused to interfere both in case of estimation of income as well as the plucking of the case out of the Scheme. Earlier it was found that the counsel for the assessee had admitted in the order sheet entry that the assessee despite being a professional doctor was not maintaining the prescribed books of account. Despite that at latter stage the books of account were produced but were found to be not in the rules. Therefore, the contention of the assessee that his case ought to have been processed under Self‑assessment Scheme was rejected.
4. Learned counsel for the petitioner relies upon re: Rajput Metal Works Ltd., Gujranwala v. CIT Rawalpindi 1976 PTD. 119. re: Shaikh Gbulam Shah v. Income Tax Officer West Zone and 2 others 1986 PTD 32 the: Pakistan Educational Society, Karachi v. Government of Pakistan 1993 PTD .804, re: Messrs Irum Ghee Mills Ltd. v. Income Tax Appellate Tribunal and others 2000 SCMR 1871 and re: M/s. Sultan Textile Mills Ltd. v. CIT Central Zone‑A 1990 PTD 241 to contend that assessment of income being without basis could not be sustained in fact as well as in law; that in the given facts the‑ case of the assessee qualified for Self‑assessment Scheme and its selection was against the dictates of the Scheme; that the assessee was entitled to an opportunity of being heard before taking out his case from ,the ambit of the Self‑assessment Scheme and that the aforesaid questions raising legal controversy are needed to be answered in the negative..
5. However, we are not persuaded. In the first instance the case‑law relied upon by the learned counsel for the petitioner except re: Rajput Metal Works Ltd. (Supra) is distinguishable on account of its having been recorded in Constitutional jurisdiction. In that case this Court in a tax reference concluded that where the Tribunal's finding with regard to rejection of accounts was based on cogent reasons and proved facts, no question of law arose therefrom. Also we are of the considered view that the questions as proposed above did not stand the test determined by the Hon'ble Supreme Court in re: Messrs Irum Ghee Mills Ltd (Supra). In our view the selection of a case of an assessed, in similar conditions, does not give rise to a question of substance to be answered by this Court.
6. In a recent case re: CIT v. Messrs Imminan International, Lahore (CTR No.20/91), we have considered the scope of jurisdiction of this Court under section 136 of the Income Tax Ordinance, 1979. By relying upon a judgment of the Supreme Court of Pakistan in re: The Lungla (Sylhet) Tea Co. Ltd. v. Commissioner of Income Tax Dacca Circle, Dacca 1970 SCMR 872 in which it was held that every question of law was not needed to be referred to this Court and that only a question having some substance needed to be so referred, we refused to entertain and consider the question if the case of the assessee in that reference was wrongly set apart for the assessment under normal law, while expressing our opinion we also benefited from a judgment of Indian jurisdiction in re: CIT v. Basanta Kumar Agarwalla (1983) 140 ITR 418, in which .their Lordships expressed the view that "a point of law" could not be equated with the expression "question of law" and that the question referred must be a disputed or disputable question of law. It was noted that reference to this Court was meant only for problematic or debatable questions and not an obvious or simple point of law.
7. For the various reasons given in the aforesaid opinion we will hold that none of the above three questions is that of substance to be answered by this Court.
Answer declined.
M.B.A./M‑573/LAnswered declined.