Syed QALLANDAR HUSSAIN VS INSPECTING ADDITIONAL COMMISSIONER OF INCOME-TAX, RANGE-II, COMPANY ZONE I; LAHORE, 2002 PTD-LAHORE-HIGH-COURT-LAHORE 2836 (2002)

Income Tax Rules, 1982---

----R. 207-A [as notified vide S.R.O. 550(I)/97, dated 25-7-1997]-- Stamp Act (II of 1899), S. 27-A---Income Tax Ordinance (XXXI of 1979), Ss.66-A, 129 & 138---Constitution of Pakistan (1973), Art. 199-- Constitutional petition---Value of shop declared by assessee was increased by Inspecting Additional Commissioner---Contention of assessee that such value should have been fixed with reference to Valuation Table notified by Deputy Commissioner for purposes of Stamp Act; 1899, while rule of assessment was a statutory measure in the form of R.207-A of. Income Tax Rules, 1982---Validity---Rule 207-A was notified vide S.R.O. 550(I)/97, dated 25-7-1997; which was a beneficial legislation having curtailed and regulated the discretion of Assessing Officer/Authority---Said rule was certainty a measure to soften the law in favour of taxpayer---Benefit of such rule ought to have been given to assessee, although same had been enacted at a point of time later than filing/determination/consideration of return, but during, pendency of the matter before Member (Judicial Income Tax), Central Board of Revenue which remedy was available under S. 138 of Income Tax Act, 1979-- Member (Judicial), C.B.R. ought to have taken note of such rule and given benefit thereof to assessee---High Court accepted Constitutional petition, resultantly revision petition would be deemed to be pending before Member (Judicial), who would, decide same after hearing the parties.

Commissioner of Income-tax v. Shahnawaz Ltd. and others 1993 SCMR 73 rel.

Zia H. Rizvi for Petitioner.

Nemo for Respondents.

Date of hearing: 15th May, 2002.

JUDGMENT

The petitioner, income tax assessee, filed a return of income for assessment year 1989-90. The return -was subject to scrutiny by an Inspecting Additional Commissioner, who vide order dated 23-5-1996 did not accept the value of the shop declared at Rs.5,30,000 and proceeded to evaluate the shop at Rs.18,30,400. This resulted in addition in the income. The appeal filed by the petitioner was partly allowed by an Appellate Commissioner who reduced the value of shop from Rs.600 per sq. ft to Rs.3,900 per sq. ft. Feeling aggrieved the petitioner filed a revision before the learned Member (Judicial), Central Board of Revenue, who dismissed the same.

2. Learned counsel for the petitioner contends that prayer of his client was that value of shop be, fixed with reference to valuation table notified by the District Collector for the purposes of stamp duty. According to the learned counsel this rule of assessment is now a statutory measure in the form of rule 207-A of the Income Tax Rules, 1982. Ro-one has turned, up for the respondents. They are proceeded against ex pane.

3. I have gone through the file of this writ petition. I find that said rule 207-A was notified vide S.R.O. 550(I)/97, dated 25-7-1997. This appears to be a beneficial legislation inasmuch as discretion of the Assessing Officer/Authority stands curtailed and regulated. To my mind although the Rule was enacted at a point of time later than filing determination/consideration of the return, benefit of the said provision ought to have been given to the petitioner. Reference be made to the case of Commissioner of Income-tax v. Shahnawaz Ltd. and others (1993 SCMR 73) Chief Justice Naseem Hasan Shah (as his lordship then was) observed in the leading opinion referred to para. 282 of "Statutory Construction" by Crawford (1940 Edition) to hold that a Statute relating to remedial law may properly, in several instances, be given retrospective operation.

4. In the present case rule 207-A is certainly a measure to soften the law in favour of taxpayer. The assessment was finalized on 23-5-1996. The Commissioner made his order on 9-4-1997. While matter was pending before the learned Member (Judicial Income Tax), C.B.R. the said Rule was enacted and since the remedy was available under section 138 of the Income Tax Ordinance, 1979, it can safely be said that the provision stood enacted during the pendency of the, proceedings, in the matter of said assessment. Learned Member, therefore, ought to have taken note of said rule 207-A and to have given benefit to the petitioner. This writ petition accordingly is allowed. The result would be that Revision Petitions Nos.8 (22 to 326) inasmuch as they pertain to valuation of the said shop shall be deemed to be pending before the said learned Member, who shall summon the parties and re-hear the matter in the light of observation made above and to decide that same.

A copy of this order be immediately remitted to learned Member (Judicial Income Tax), Central Board of Revenue, Islamabad.

S.A.K./Q-22/LOrder accordingly.