COMMISSIONER OF INCOME-TAX, CENTRAL ZONE, LAHORE VS QURESHI CHEMICALS STORE, LAHORE
2001 P T D 2824
[Lahore high Court]
Before Nasim Sikandar and Mansoor Ahmad, JJ
COMMISSIONER OF INCOME‑TAX, CENTRAL ZONE, LAHORE
versus
Messrs QURESHI CHEMICALS STORE, LAHORE
C. T. R. No. 114 of 1997, decided on 08/05/2001.
(a) Income Tax Ordinance (XXXI of 1979)‑‑‑
‑‑‑‑S.65‑‑‑Additional assessment‑‑‑Assessment prior to enforcement of Income Tax Ordinance, 1979‑‑‑Assessment could not be framed for any assessment year. prior to the enforcement of Income Tax. Ordinance, 1979 without issuance of a notice under S.65 of the Income Tax Ordinance, 1979.
C.T.R. No.345 of 1991 ref.
(b) Income Tax Ordinance (XXXI of 1979)‑‑‑
‑‑‑‑Ss.56 & 166‑‑‑Notice for furnishing return of total income‑‑‑Issuance of notice in respect of assessment year prior to 1‑7‑1979‑‑‑Section 56 of the Income Tax Ordinance, 1979 had not been saved by the saving and repealing S.166 of the Income Tax Ordinance, 1979 and, therefore, no notice under S.56 could be issued to an assessee for any assessment year prior to I‑7‑1979 i.e. the date of enforcement of the Income Tax Ordinance, 1979.
C.T.R. No.345 of 1991 ref.
(c) Income Tax Ordinance (XXXI of 1979)‑‑‑
‑‑‑‑S.136‑‑‑Reference to High Court‑‑‑Question whether the Tribunal was justified in annulling the assessment ignoring that assessee's un-remonstrative compliance of notice under S.56 attracts the provisions of S.154(6) & S.5(5) of the Ordinance, which clearly debar him from challenging the jurisdiction of the Officer or validity of the notice, was declined by the High Court on the ground that the same did not arise out of the order of the Tribunal and therefore, it should not at all have been referred.
Kh. Muhammad Saeed for Petitioner.
ORDER
NASIM SIKANDAR, J.‑‑‑This is a case stated by the Lahore Bench of the Income‑tax Appellate Tribunal under section 136(1) of the Income Tax Ordinance, 1979. The following question of law is said to have arisen out of their order recorded on 29‑7‑1995:‑‑‑
"Whether on the facts and in the circumstances of the case, the Tribunal was ,justified in annulling the assessment ignoring that assessee's un-remonstrative compliance of notice under section 56 attracts the provisions of section 154(6) and section 5(5) of the Ordinance which clearly debar him from challenging the jurisdiction of the Officer or validity of the notice?"
2. After hearing the learned counsel for the Revenue we are of the view that the aforesaid question does not arise out of the order of the Tribunal. The issue if after having complied with notice under section 56 of the Ordinance, 1979 the assessee was barred from questioning the service of notice as contemplated under section 154(6) of the Income Tax Ordinance, 1979 was never mooted as such before the Tribunal. Even from the statement of the case wherein the relevant portion of the order of the Tribunal has been reproduced, it is quite clear that the issue before the Tribunal pertained only as to the provisions of law under which a notice was to be served for an assessment year prior to the enforcement of the Income Tax Ordinance, 1979. The Tribunal after examining the facts before them and also by referring to their earlier judgments concluded that an assessment could not be framed for any, assessment year prior to the enforcement of the Ordinance without issuance of a notice under section 65 of the Ordinance. In their view section 56 had not been saved by the saving and repealing section 166 of the Ordinance and, therefore, no notice under section 56 could be issued to an assessee for any assessment year prior to 1‑7‑1979 i.e. the date of the enforcement of the Ordinance, 1979.
3. In a recent opinion expressed in C.T.R. 345 of 1991 we have examined the provisions of sections 56 and 65 of the Income Tax Ordinance, 1979 in the perspective of repealing and saving provisions of section 166 thereof. Para. 17 of the said case reads as under:
"Lastly coming to the issue if notices under section 56 of the Income Tax Ordinance could be issued for a period prior to the enforcement of Income Tax Ordinance, 1979 we find that the Revenue does not have any case to argue. Section 166 providing for repeal and savings for certain kind of pending proceedings does not contemplate issuance of notice under section 65 of the Income Tax Ordinance for a period dating back to days when the Act was in force. The two situations contemplated under sub‑clause (c) of 'subsection (2) of section 166 do not cover a situation where a person had not filed a return before the enforcement of the Ordinance. The first situation relates to cases where a notice under section 34 of the repealed Act had already been issued before the enforcement of the Ordinance and second, where the provisions of section 65 of the Ordinance needed to be invoked on the grounds stated therein. Since no saving clause provides for issuance of a notice under section 56 in respect of any year prior to the enforcement of the Ordinance we will hold that a notice under section 56 cannot be issued for any assessment year prior to the date of enforcement of the Ordinance i.e. 1‑7‑1979."
4. The aforesaid reproduction of the part of our opinion indicates that the order of the learned Tribunal was perfectly in accordance with law However, as said earlier, the question as referred to us does not arise out of the order of the Tribunal and, therefore, it should not at all have been declined.
5. Answer declined.
C.M.A./C-100/L Answer declined