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

‑‑‑‑S. 12(18)‑‑‑Deemed income‑‑‑If an assessee was able to prove that the amount paid by him was through cross cheque the other requirements i.e. to intimate the National Tax Number were not to be invoked‑‑‑Language of relevant law is disjunctive and not conjunctive.

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

‑‑‑‑Ss. 66‑A & 12(18)‑‑‑Powers of Inspecting Additional Commissioner to revise Deputy Commissioner's order‑‑‑Deemed income‑‑‑Share deposit money was received through cross cheque‑‑‑Inspecting Additional Commissioner cancelled the order of Assessing Officer on the ground that the requirement of its receipts from a National Tax Number holder was not fulfilled‑‑‑Validity‑‑‑Effect of the use of word 'or' between the words "otherwise than by a cross cheque drawn on a Bank" and "through a banking channel from a person holding a National Tax Number" was that it should be either through cross cheque or through other normal banking channels, provided the money‑lender was the National Tax Number holder, which means that the payment through cross cheque was not required if it was from a National Tax Number holder‑‑‑Amount in the present case having been paid through cross cheque there was no reason for cancellation of the order by holding that National Tax Numbers of the payers were not available‑‑‑Appellate Tribunal cancelled the order of I.A.C. and restored that of the Assessing Officer.

2000 PTD 118 rel.

M. A. Hadi, F.C.A. for Appellant.

Anwar Ali Shah, D.R. for Respondent.

Date of hearing: 3rd November, 2001.

ORDER

KHAWAJA FAROOQ SAEED (JUDICIAL MEMBER).‑‑‑The assessee has filed this appeal. The petitioner says that cancellation of order under section 66A is not justified. He brought our attention to the relevant para. of the order and said that the observation is a misconception. He remarked that the assessee had advanced some amount as share deposit money on which the provisions of section 12(18) are not applicable. In this regard his reliance is on the latest reported judgment 2000 PTD 118. He argued that this amount in fact, was not an advance but a full deposit for purchase of shares besides it was through cross cheque. The requirement of its receipt from a National Tax Number holder was not in any case applicable on the facts of this case. It was an amount received through cross cheques. In proof of his contention he produced before us certificate from Habib Bank Limited, Ghalla Mandi, Haroanabad, District Bahawalpur. He was asked as to whether such claim was filed before the Assessing Officer or not against Which he referred are from the order of the Assessing Officer that it was very well there. Further, the money‑lenders had in their affidavit deposed that the amount has been paid by them through cross cheque.

When confronted to learned D. R. he said that the assessee was still required to intimate the N.T.N. even if the amount is through the cross cheque. He, therefore, strongly supported the order of the I.A.C.

The argument is simply a misconception. If an assessee is able to prove that the amount paid by him is through cross cheque the other requirements are not to be invoked. The language of law is disjunctive and not conjunctive. The same speaks as follows:

"12(18). Where any sum claimed, or shown, to have been received as loan or advance or gift by an assessee during any income year commencing on or after the first day of July, 1998, from any person, not being a ‑banking company, or a financial institution notified by the Central Board of Revenue for this purpose, otherwise then by a' cross cheque drawn on a bank, or through a banking channel from a person holding a National Tax Number, the said sum shall be deemed to be the income of the assessee for the said income year chargeable to tax under this Ordinance, provided that, where the said loan or advance or gift is claimed or shown by way the explanation, referred to in subsection (1) of section 13, in a case to which the first proviso to the said subsection applies, the income under this subsection shall relate to the assessment year referred to in the said proviso."

This impression comes from the use of word `or' between otherwise than by a cross cheque drawn on a bank and through a banking channel from a person holding a National Tax Number. The result of the use of word `or' is that it should be either through cross cheque or through other normal banking channels provided the money lender 'in N.T.N. holder. It obviously concludes that the payment through cross cheque is not required if it is from a N.T.N. holder. Conversely, in the present case the fact that the amount has been paid through cross cheque there was no reason for cancellation of the order by holding that N.T.N.?of the payers were not available. The order of the I.A.C. as such is not maintainable the satire is hereby cancelled. It obviously concludes that the original order of the I.T.O. holds fields.

C.M.A./M.A.K./200/Tax (Trib.) ???????????????????????????????????????????????????????? Appeal accepted.