I.T.A. No. 3068/LB of 1994, decided VS I.T.A. No. 3068/LB of 1994, decided, 2002 PTD-INCOME-TAX-APPELLATE-TRIBUNAL-PAKISTAN 1962 (2002)

(a) Income Tax Ordinance (XXXI of 1979)--

---Ss. 13(1)(aa), 129 & 134---Unexplained investment ---Assessee claimed to have purchased house in constructed form and produced certificates of Property Tax Department and Secretary of Housing Society and proof of installation of telephone---Assessing Officer finalized the assessment by making addition under S.13(1)(aa) of Income Tax Ordinance, 1979, presuming that plot was purchased earlier and construction was raised thereon during the assessment year---First Appellate Authority deleted the addition finding that house was purchased in constructed form-- House being not in the name of assessee, could not be assessed in his hands'---Department could always initiate proceedings, thus set aside was of no help to Department and would only be triggering another round of litigation in case of present assessee---Assessing Officer had option to initiate penalty proceeding against assessee for his non-cooperative behavior or/and to start independent proceedings against his wife, but could not make a harsh assessment or add an income not belonging to assessee---Appeal filed by Department was rejected in circumstances.

(b) Income-tax---

---Assessment proceedings---Non-cooperative attitude of assessee-- Effect---Department is equipped with penal provisions to meet such situation---Assessing Officer under the garb of non-cooperative behavior of assessee cannot make a harsh assessment or add an income not belonging to assessee.

Muhammad Asif, D.R. for Appellant.

Shahid Umer for Respondent.

Date of hearing: 26th February, 2002.

ORDER

This is a case of difference of opinion in which following question has been framed for the consideration:---

"Whether the CIT(A) was justified in deleting the addition of Rs.18,00,000 made to the income of the assessee under section 13(1)(aa) for the assessment year 1990-91 on account of investment made in the construction of House No.163-A/1, Township, Lahore?"

Difference of opinion as is obvious is on as to whether the circumstances warranted cancellation or set aside. Facts leading to above question is that the assessee an individual did not comply with the notices of the income Tax Department and the Assessing Officer while finalizing assessment made on addition under section 13(1) amounting to Rs.18,00,000. This was in respect of house, which the assessee claimed having purchased in a constructed form. On the other hand the department has presumed that the plot was purchased earlier and construction was raised thereon during the impugned year 1990-91. This presumption was proved to be incorrect on the stage of the First Appellate Authority who found that the house was purchased in constructed form. In proof thereof the assessee has furnished certificate from the Property Tax Department, from the Secretary of the Society and proof of installation of telephone connection in 1992. These proofs being unequivocal learned Judicial Member was of the opinion, that the cancellation by the First Appellate Authority was fully justified. The learned Accountant Member however is of the opinion that it should be set aside. I might have agreed with learned AM if the result of the set aside would have had the possibility of tilt towards department. I am afraid that the Assessing Officer shall not be in a position to disagree with learned Judicial Member and set aside shall only be triggering another round of litigation in the case of this assessee. Furthermore, the property is in the name of the wife of the assessee. This in any case cannot be assessed in the hands of this assessee and the department could always initiate proceedings. In such circumstances the set aside is of no help to the department.

Regarding non-cooperative attitude of the assessee the department is equipped with various penal provisions and Assessing Officer cannot be allowed to make a harsh assessment or add on income, which does not, belong to the assessee under the garb of non-cooperative behaviour of the assessee. However, the department obviously has the option to initate penalty proceeding for non-cooperation or/and to start proceedings against wife of the assessee independently. Regarding difference of opinion between the two Honourable Members of this Tribunal. I have already shown my respectfully agreement with learned JM for the reasons assigned supra as a result of which this Department appeal stands rejected.

Order accordingly.

S.A.K./297/Tax (Trib.) Order accordingly.