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

‑‑‑‑S. 55(3)‑‑‑Extension of date for filing of return‑‑‑Central Board of Revenue could not take away, by issuing a Circular, the powers of extending the date of filing of return vested in the Assessing Officer by S; 55(3) of the Income Tax Ordinance, 1979 unless the law was 'got amended.

(b) Income Tax Ordinance (XXXI of 1979)‑‑‑

‑‑‑‑S. 55(2) & (3)‑‑‑Return of total income‑‑‑Self‑Assessment Scheme‑‑ `Due date'‑‑‑Extension of‑‑‑No doubt the Assessing Officer had been given power by S.55(3) ‑to allow extension to an assessee who was unable to file his return of income within the date specified under S.55(2) on his request, but the date extended under S.55(3) would not be called due date for the purpose of filing return of income under the ambit of Self‑Assessment Scheme.

(c) Income Tax Ordinance (XXXI of 1979)‑‑‑

‑‑‑‑Ss. 59 & 55(3)‑‑‑C.B.R. Circular No.9 of 1993, dated 1‑7‑1993‑‑C.B.R. Letter No. C. No.7(16) DT‑1493, dated 25‑7‑1993, para. 1(a)‑‑ Self‑assessment‑‑‑Assessment year 1993‑94‑‑‑Return filed within the extended date allowed by the Assessing Officer‑‑‑Availability of benefit of Self‑Assessment Scheme‑‑‑Return filed by the assessee within date extended by the Assessing Officer did not make an 'assessee eligible to avail the benefit of Self‑Assessment Scheme‑‑-Such return could not be deemed or considered to have been filed within `due date' because the expression "due date" means the date specified under S.55(2) and not the date extended by the Assessing Officer under S.55(3) of the Income Tax Ordinance, 1979.

(d) Income Tax Ordinance (XXXI of 1979)‑‑‑

‑‑‑‑Ss. 59 & 55‑‑‑Self‑assessment‑‑‑Conflict between the provision of S.55 of the Income Tax Ordinance, 1979 and Self‑Assessment Scheme framed under S.59 of the Income Tax Ordinance, 1979‑‑‑Effect‑‑‑If there is such a conflict, the provisions of Self‑Assessment Scheme in case of a taxpayer claiming eligibility under such Scheme would prevail on the general provisions of Income Tax Ordinance,, 1979.

1997 PTD (Trib.) 183 rel.

(e) Income Tax Ordinance (XXXI of 1979)‑‑‑

‑‑‑‑Ss. 59 & 55(3)‑‑‑Due date‑‑‑Meaning‑‑‑Expression "due date" means the date specified under S.55(2) of the Ordinance and not the date extended by the Assessing Officer under S.55(3) of the Income Tax Ordinance.

Muhammad Asif, D.R. for Appellant.

Javed Iqbal for Respondent.

Date of hearing: 18th October, 2001.

ORDER

MUHAMMAD SHARIF CHAUDHRY (ACCOUNTANT MEMBER). ‑‑‑Appeal has been filed by Revenue against the appellate order, dated 27‑11‑1994 passed by Commissioner Income Tax Appeal Zone‑V, Lahore under section 132 of the Income Tax Ordinance for the assessment year 1993‑94. It has been contended in the grounds of appeal that the learned Commissioner was not justified to direct the Assessing Officer for acceptance of the return under SAS.

2. Appellant's DR and respondent's AR have been heard. Available records have been perused:

3. Brief facts of the. case, which have led to the present litigation before us, are that the assessee is a registered firm which derives income from running an ice factory. Its return of income for the year 1993‑94 was due under section 55(2) of the Income Tax Ordinance (before its substitution by Finance Act of 1995) by 31st July, 1993. However, the assessee filed the return within the time extended by the ITO on 15‑8‑1993. The Assessing Officer excluded assessee's case from Self -Assessment Scheme for the reason that the return had not been filed by the due date and moreover the ITO had no power to extend the date of filing of return. In support of this action the ITO quote para. l(a) of the' C.B.R. Circular No:9 of 1993; dated 1‑7‑1993, which outlined Self‑Assessment Scheme for the assessment year. 1993‑94 and also C.B.R. Circular Letter No. C. No. (16) DT‑1493, dated‑25‑7‑1993.. Para. 1(a) of C.B.R. Circular of SAS disqualifies from eligibility to SAS those, "returns, which are not filed voluntarily by the due date, including the extended ‑date by the C.B.R." The abovementioned Circular letter of C.B.R., dated 25‑7‑1993 has issued, "clarification regarding para‑1(a) which reads it means statutory authority given to the ITO under section 55(3) is being taken away." Thus relaying on these Circulars of C.B.R. the Assessing Officer, excluded assessee's return from SAS and proceeded to asses the income of the assessee under section 63 on 13‑6‑1994. Against this treatment of the Assessing Officer an appeal was preferred before the Commissioner who in his impugned appellate order, dated supra, accepted the return of income filed by the assessee under SAS. The reasons given by the learned Commissioner for his appellate decision are that the power given to the ITO under Income Tax Ordinance cannot be withdrawn by the C.B.R. and that the return filed by the assessee within the date extended by the ITO is a return filed within due date and hence it qualifies under SAS. Iris against this decision of the. Commissioner that the Department has now come up in appeal before us.

4. It has been contended by the learned DR that the action of the learned Commissioner is unjustified. On the contrary, the AR of the assessee contends that the Commissioner, has taken right view and the relief given by the Commissioner to the assessee is absolutely justified. The position taken by the authorized representatives of both the parties and the arguments given by them are in fact reiteration of the stand of the parties taken ht assessment stage and the first appellate forum as indicated above.

5. We have gone through the assessment order of the ITO and the impugned appellate order of the learned Commissioner. We have also evaluated the arguments given on behalf of both the parties. We feel no hesitation to agree with the view point of the learned Commissioner that the C.B.R. cannot take away, by issuing a circular, the power of l. extending the date of filing of return vested in the ITO by subsection. (3) 1 of section 55 unless the law is got amended. However, we regret to admit our inability td agree with the learned Commissioner on the point that the return filed by the assessee within the date extended by the ITO under section 55(3) of the Income Tax Ordinance tantamounts to the return filed within due date and, therefore, it is entitled for acceptance under Self‑Assessment Scheme. The reasons of our difference with the learned Commissioner and also with the AR of the assessee on this point are as under:

6. Para.l(a) of the Circular of .C.B.R. No.9 of 1993, dated 1‑7‑1993 regarding Self‑Assessment Scheme lays down, "return which are not filed voluntarily by the due date including the extended date by 'the C.B.R." So, those returns have been excluded from the ambit of Self‑Assessment Scheme which are not filed by the due date or which are not filed by the date extended by the C.B.R. Now the question arises whether the return filed by a taxpayer within the date extended by ITO under section 55(3) is a return by due date or not? In our opinion such a return is not one filed within due date. Although section 55 of the Income Tax Ordinance does not use the expression, "due date" yet the "due date" in our view means the date specified under section 55(.2) of the Income Tax Ordinance which is uniform, universal and common for a class or category of taxpayers mentioned specifically therein. The term "due date" entails the conception of universality and uniformity and it cannot be interpreted to apply to a date which has been extended by income tax authorities in the case of an individual taxpayer on his specific request. No doubt the Income Tax Officer has been given power by section 55(3) to give extension to an assessee who is unable to file his return of income within the date specified under section 55(2) on his request, but the date extended under section 55(3) would not be called due date for the purpose of filing return of income under the ambit of Self‑Assessment Scheme: Moreover, para. 1(a) of the abovementioned Circular of C.B.R. clearly makes distinction between the due date and the date extended by' an Income Tax Authorities by using the words, "returns which are not filed voluntarily by the due date, including the extended date by the C.B.R." Thus this para. not only makes distinction between due date and extended date but also clarifies that extended date by the C.B.R. makes a return eligible for Self‑Assessment Scheme and not the date extended by Income Tax Officer or any other Income Tax Authority. Therefore, return filed by a taxpayer within the date extended by the Income‑tax Officer, in our humble view, does not make a taxpayer eligible to avail the benefit of Self‑Assessment Scheme. And such return cannot be deemed or considered to have been filed within due date because the expression due date, as we have explained above, means the date specified under section 55(2) and not the date extended by the Income Tax Officer under section 55(3).

In the present case there is no conflict, according to our view, between the provision of section 55 and the Self‑Assessment Scheme framed by the C.B.R. under section 59 of the Income Tax Ordinance. But if at all there is such conflict, the provisions of Self‑Assessment D Scheme in case of a taxpayer claiming eligibility under this Scheme would prevail on the general provisions of Income Tax Ordinance like those of section 55. This view has been held by the Income Tax Appellate Tribunal in a case reported as 1997 PTD (Trib.) 183. It has been pronounced by the learned ITAT in this judgment that SAS formulated by the C.B.R. is a Special Law and in case of clash between Special Law and General‑Law, the Special Law would prevail. Hence the view of the learned Commissioner and the AR of the assessee that the return filed by the assessee within extended date under section 55(3) should be considered as in due date within the meaning of section 55 would be of no avail even if for the sake of argument this incorrect view is accepted, because the abovementioned para. of C.B.R. Circular of SAS does not approve this. As mentioned above, SAS scheme formulated by C.B.R. makes distinction between due date and extended date and only recognizes the date extended by C.B.R. for the purpose: of determining a taxpayer's eligibility under SAS and not the date extended by ITO.

7. In view of the foregoing discussion we have no hesitation to hold that the return filed by the assessee within the date extended by the Income Tax Officer is not a return filed, within‑due date, hence it is not entitled to acceptance under SAS. It would, therefore, meet the ends or justice if the order passed by the learned Commissioner is vacated and that of the Income Tax Officer is restored.

C.M.A./M.A.K./186/Tax(Trib. Order accordingly.