I.T.A. No.480/KB of 2001, decided on 18th June, 2002. VS I.T.A. No.480/KB of 2001, decided on 18th June, 2002.
2002 P T D (Trib.) 2787
[Income‑tax Appellate Tribunal Pakistan]
Before Jawaid Masood Tahir Bhatti, Judicial Member and
Muhammad Mehboob Alam, Accountant Member
I.T.A. No.480/KB of 2001, decided on /01/.
th
June, 2002. (a) Income Tax Ordinance (XXXI of 1979)‑‑‑
‑‑‑‑Ss.132(3) & 156‑‑‑Order passed in appeal was not given effect to‑‑ Order rectified under 5.156 of the Income Tax Ordinance, 1979 by the Assessing Officer was annulled by the Appellate Authority for the reason that proper opportunity of being heard was not afforded to the assessee‑ Assessing Officer instead of giving effect to the order of the Appellate Authority followed the instructions of the Inspecting Additional. Commissioner‑‑‑Appellate Tribunal deprecated the tendency of ignoring or bypassing the decision of the Superior Authorities on the part of the Assessing Officer as due to such maladministration of justice, observance of discipline and the maintenance of rule of consistency were disturbed.
(b) Interpretation of statutes‑‑‑
Unambiguous legislative command was needed in the matter of fiscal statute‑‑‑One had to look at what was clearly said, there being no room for any intendment, or presumption as to tax nothing was to be read in the fiscal statute, which was not there beyond the clear language.
(c) Income Tax Ordinance (XXXI of 1979)‑‑‑
‑‑‑‑S.62A & Second Sched., Part IV, Cl. (7)‑‑‑Initiation of proceedings under S.62A of the Income Tax Ordinance (XXXI of 1979) before 1‑7‑2000 and assessment was finalized‑‑‑Validity‑‑‑Provision of S.62A of the Income Tax Ordinance, 1979 was inserted in the statute book but its operation was suspended and admittedly Assessing Officer started proceedings under S.62A of the Income Tax Ordinance, 1979 by issuing letter dated 24‑1‑2000 when the said section was not operative being suspended but the Assessing Officer issued a show‑cause letter,‑ dated 26‑5‑2000, reminder dated 5‑6‑2000 and once again issued show cause dated 12‑6‑2000 while S.62A of the Income Tax Ordinance. 1979 had been made operational with effect from July 1,2000 and therefore, all the proceedings by the Assessing Officer were ab initio void, illegal, and in consequence thereof the order passed under S.62A of the Income Tax Ordinance, 1979 had no validity in law and was cancelled by the Tribunal‑‑‑Appeal of the assessee was allowed.
A. S. Jafri for Appellant.
Muhammad Ali Indhar, D. R. for Respondent.
Date of hearing: 18th June, 2002.
ORDER
JAWAID MASOOD TAHIR BHATTI (JUDICIAL MEMBER).‑‑‑The appellant through this appeal has objected to the impugned order of the learned CIT(A), dated 15‑6‑2001, dismissing the appeal filed against the order passed under section 62A of the Income . Tax Ordinance, 1979 by the Assessing Officer
2. Mr. A. S. Jafri, Advocate learned representative of the appellant has contended that the original assessment in his case was made by the Assessing Officer on 15‑4‑1996 which was later on rectified by the Assessing Officer under section 156 of the Ordinance on' 12‑8‑1999 an(: against that rectificatory order, appellant filed first appeal before the learned CIT (A) and the order made by the Assessing Officer under section 156 of the Ordinance was annulled by the learned CIT(A), According to the learned counsel, the Assessing Officer has now passed an order under section 62A of the Ordinance on 20‑11‑2000 which is beyond his jurisdiction. According to the learned counsel, section 62A was inserted in the Income Tax Ordinance, 1979, through Finance Act, 1987 but it remained suspended till 30‑6‑2000 by virtue of clause (7) of Part IV of the Second Schedule which was committed by Finance Ordinance, 2000 when this section 62A is made operational with effect from July 1, 2000 and which has. no retrospective effect. Learned counsel has contended that all the proceedings by the Assessing Officer were before July, 2000, as, the notice was admittedly 'issued by the Assessing Officer on 26‑5‑2000 and the order has been passed on 20‑11‑2000 and as the Assessing Officer has no jurisdiction to proceed under section 62A of the Ordinance on 26‑5‑2000, the operation of the said section being suspended, therefore, all the proceedings of the Assessing Officer are ab initio, illegal and, void, Learned counsel has contended that the learned CIT(A) has not considered all these facts and has upheld the treatment meted out by the Assessing Officer.
3. On the other hand, Mr.. Muhammad Ali Indhar, learned representative of the Department, is supporting the impugned orders of the officers below. He has contended that assessment originally made by the Assessing Officer, dated 15‑4‑1996 was rectified under section 156 of the Ordinance but the learned CIT(A) annulled the rectified order passed by the Assessing Officer on 1‑12‑1999 for the reason that the assessee was not afforded opportunity of being heard before rectifying the order and the Assessing Officer has rightly proceeded and initiated under section 62A of the Ordinance as the said section is procedual having retrospective effect. Learned D.R. has contended that a notice was issued on 26‑5; 2000 which was duly served upon the assessee, later on reminders were also issued and served upon the assessee but the assessee failed to comply‑ with notice and deliberately delayed to attend the proceedings before the Assessing Officer and the Assessing Officer, therefore, having no alternate finalized the order under section 62A of the Ordinance, which has rightly been upheld by the learned CIT(A).
4. We have heard learned representative of both the parties and. have also perused the impugned order of the learned CIT(A), the order of the Assessing Officer passed under section 62A of the Ordinance and the relevant provisions of law. We have found that the original assessment inon 15‑6‑1996, which was rectified by the Assessing Officer on 12‑8‑1999 against which first appeal was filed. by the assessee before the learned CIT(A) who has annulled the order passed under section 156 for the reasons that proper opportunity of being heard to the assessee was not afforded. The Assessing Officer instead of giving appeal effect to the order bf the learned CIT(A), dated 1‑12‑1999 followed the instruction of the IAC and has not given the effects to the order in first appeal by the learned CIT(A), under subsection (3) of section 132 of the Ordinance, we deprecate the tendency of ignoring or bypassing the decision of the superior Authorities on the part of the Assessing Officer as due to this maladministration of justice, observance of discipline and the maintenance of rule of consistency are distributed. We have further found that section 82A of the Ordinance was inserted in the Income Tax, Ordinance, 1979 through Finance Act, 1987 but it remained suspended till 30‑6‑2000 when Clause (7) of Part IV of the Second Schedule to the Income Tax Ordinance, 1979 was omitted by Finance Ordinance of 2000 and section 62A of the Ordinance has been made operational with effect from July 1, 2000, giving the Assessing Officer powers to start the case next preceding the stage at which any assessment or any order was annulled, set aside, cancelled or modified. This provision was made inapplicable by virtue of clause (7) of Part IV of the Second Schedule of the Income Tax Ordinance, 1979 most probably, due to the representation that it may violate the principles of natural justice as this kind of post appeal powers to the Assessing Officer violates the principles of opportunity of being heard and observation of due procedure of law. This section cannot have retrospective effect as the operation of this section has been suspended specifically by virtue of clause (7) of Part IV of the Second Schedule and till 30‑6‑2.000 it remained suspended when said clause (7) was omitted and section 62A of the Ordinance is made operational with effect from July 1, 2000 it is settled law that to tax a citizen unambiguous legislative command is needed and in the matter of fiscal statute one has to look merely at what B is the clearly said and there is no room for any intendment there is no presumption as to tax, nothing is to be read in the fiscal statute, which is not there neither any to be employed nor to be read in a fiscal statute beyond the clear language. In the present case, the provision of law (62A) was inserted in the statute book but its operation was suspended and admittedly Assessing Officer started proceedings under section 62A of the Ordinance by issuing letter, dated 24‑1‑2000 when this. section was not operational being suspended but the Assessing Officer issued a show cause letter, dated 26‑5‑2000 reminder, dated 5‑6‑2000 and once again issued show cause, dated C 12‑6‑2000, as mentioned in the order of the Assessing Officer under section 62A while section 62A of the Ordinance has been made operational with effect from July 1, 2000 and therefore, all the proceedings by the Assessing Officer, without having any strength from the law, are ab initio void, illegal, and in consequence thereof the order passed under section 62A of the Ordinance has no footing under the law and is, therefore, cancelled. The appeal filed by the assessee is allowed.
C.M.A./M.A.K./416/Tax (Trib.)
Appeal allowed.