BEFORE RASHEED AHMAD SHEIKH, JUDICIAL MEMBER AND JAVED TAHIR BUTT, ACCOUNTANT MEMBER VS BEFORE RASHEED AHMAD SHEIKH, JUDICIAL MEMBER AND JAVED TAHIR BUTT, ACCOUNTANT MEMBER
2002 P T D (Trib.) 503
[Income-tax Appellate Tribunal Pakistan]
Before Khawaja Farooq Saeed, Judicial Member and Muhammad Munir Qureshi, Accountant Member
R.A. No.349/LB of 2001, decided on 29/09/2001.
Income Tax Ordinance (XXXI of 1979)--
----Ss. 59, 59-A & 136---C.B.R. Circular No. 5 of 1997, dated 12-7-1997---C.B.R. Letter No. C. No. 7(27)/S. Asstt/1996,dated 27-1I-1996---Broad-BasedSelf-Assessment Scheme ---Reference---Assessment year 1997-98---Assessee's case was excluded from Broad Based Self-Assessment Scheme'on the ground that assessee's case for the assessment year 1996-97 was accepted under S.59-A and not under S.59(1) of the Income Tax Ordinance, 1979 and immunity for the assessment year 1997-98 was available only to those cases covered under S.59(1) and not to cases accepted under S.59-A of the Income Tax Ordinance, 1979---Validity---Requirement for qualification under the Scheme was that the tax paid on the basis of income declared for the assessment year 1997-98 was not less than the, tax payable for assessment year 1996-97---Assessee's return being covered within the relevant provision the question that the same was not finalized under Self- Assessment Scheme 1996-97 and was otherwise accepted under S.59 of Income Tax Ordinance, -1979 became irrelevant---No reason existed to select the case of assessee for normal assessment and the finding of the Tribunal was clear in all respects---Reference was refused to be sent to the High Court by the Tribunal.
Muhammad Asif, D.R. for Appellant.
Malik Muhammad Bashir for Respondent.
Date of hearing: 22nd September, 2001.
ORDER
KHAWAJA FAROOQ SAEED (JUDICIAL MEMBER).---Following questions have been framed for re;:rence to the Honourable High, Court:--
(i)Whether on the facts and in the circumstances of the case, the learned Tribunal is justified, to direct acceptance of assessee's return under Self-Assessment Scheme?
(ii)Whether decision of the learned Tribunal is based on misreading of Circular No. 12 of 1997, dated 17-9-1997?
The brief facts of the case are that the assessee filed return under Self-Assessment Scheme arid the same was excluded from the purview of S.A.S. by observing that only such assessees were entitled to immunity who had availed of Broad Based Self-Assessment Scheme. In the opinion of the department the title of Self-Assessment Scheme for various years are different. It is said that the learned Tribunal hag misdirected itself to hold that the Tribunal seems to have triggered from the word "Broad Based Self-Assessment Scheme" in Circular No.12 against impression that it was simplified S.A.S. The departmental claim is that the C.B.R. has been issuing Self-Assessment Schemes with specific titles and the same is changed after two years as illustrated hereunder:--
"The assessee submitted return for 1996-97 as `new tax-payer'. As per clarification C.No.7(27)/S.Asstt/1996, dated 27-11-1996, which reads as under:--
'New tax-payers are not covered by Broad Based Self -Assessment Scheme for the assessment year 1996-97 as per contents of the corrigendum of Circular No.16, of 1996'. Therefore, the assessee's case is not covered under BBSAS for 1996-97 arid was consequently accepted under section 59-A and not under section 59(I). For 1997-98, immunity was available to cases covered under section 59(1) and not to cases accepted under section 59-A."
Above illustration forms a part of the statement of the case at page 3 and has been reproduced by us verbatim. Their claim, therefore, is that original return for 1997-98 was under simplified Self-Assessment Scheme hence does not qualify.
The learned D.R. also made reference to various other provisions of the circulars. However, the same not being much of relevance are ignored. In this case it is not the learned Tribunal who has misdirected itself, but the department who is insisting upon that assessment year 1997-98 was not a Broad Based Self-Assessment Scheme. Circular No.5 of 1997, dated July 12, 1997 starts from the title as "Broad Based Self-Assessment Scheme, 1997-98." While in its subject it says "simplified Self-Assessment Scheme of income-tax for assessment year 1997-98. For reference we reproduce the title of the said Circular, which speaks as follows:--
BROAD BASED SELF-ASSESSMENT SCHEME 1997-98
Dated July 12, 1997
CIRCULAR N0.5 OF 1997
(INCOME-TAX)
SUBJECT:SIMPLIFIED SELF-ASSESSMENT SCHEME OF INCOME-TAX FOR ASSESSMENT YEAR 1997-98.
From above it is clear that the name of the Scheme is BBSAS, 1997-98. The department claim that the Scheme for 1997-98 is not Broad Based, therefore, is a misconception as is evident from the description as above. This situation was pointed out to learned D.R. who remarked that this seems to be a mistake. The other relevant argument is that for the assessment year 1996-97 the assessee return was not accepted under BBSAS. Rather it was accepted under a separate direction of the Central Board of Revenue, which was issued to liquidate pendency through C.No.7(27)SAS/1996, dated 2-6-1997 under section 59-A. This contention of the department is also a misconception. Circular No.7(27) was issued in continuation of the Self-Assessment Scheme as is evident from the same. There was only one exception that was in respect of those cases were -concealment of income was deleted by the department. However, this was also a part of the self-assessment scheme. Even if the contention of the department that acceptance under section 59-A is not a part of the scheme of Self-assessment is accepted, still the assessee remains covered otherwise Self-Assessment, Scheme, 1997-98 through Circular No.5 of 1997 (Income-tax), dated. July 12, 1997 explained the scope of the scheme in the following manner:-- .
Scope of the Scheme
(1)The scheme applies to returns of income, other than those filed by a company as defined in the Income Tax Ordinance, 1979;
(2)Returns filed for the assessment year 1997-98 shall qualify for acceptance, under the scheme, provided that they fulfill the following conditions:--
(a)Return is filed voluntarily by the due date; and
(b) The tax paid by and existing assessee on the basis of income declared for assessment year 1997-98 declared for assessment year 1997-98 is not less than the tax payable for the assessment year 1996-97 on the basis of assessment or returned income which ever is higher.
The only requirement of qualification under the scheme was that l the tax paid on the basis of income declared for 1997-98 is not less than the tax payable for assessment year 1996-97. The assessee return being covered within this provision the question that the same was not finalized under Self-Assessment Scheme, 1996-97 and was otherwise accepted under section 59-A becomes irrelevant. It was on the basis of above qualification that this assessee subsequently revised its return under para.2(i) of Circular No. 12 of 1997, dated 17th September, 1997. There A was, therefore, no reason to select the same for normal assessment and that the finding of the learned Tribunal was clear in all respects.
Above discussion makes it clear that there is no misreading on the part of the ITAT and it was a clear case of acceptance of return under Broad Based Self-Assessment Scheme for 1997-98. The two questions as such being of non-substantial nature and with obvious answer, therefore, cannot be sent to Honourable High Court.
The reference applications are, therefore, dismissed.
C.M.A./175/Tax (Trib.) Reference applications dismissed.