MRS. ADEEBA EHSAN VS INCOME-TAX APPELLATE TRIBUNAL OF PAKISTAN, LAHORE BENCH, LAHORE
2002 P T D 453
[Lahore High Court]
Before Nasim Sikandar and Mansoor Ahmad, JJ
Mrs. ADEEBA EHSAN
versus
INCOME-TAX APPELLATE TRIBUNAL OF PAKISTAN, LAHORE BENCH, LAHORE and 3 other,
W.T.As. Nos.540 to 543 of 2000, heard on 30/05/2001.
(a) Wealth Tax Act (XV of 1963)---
----S.17B---Powers of Inspecting Assistant Commissioner to revise Wealth Tax Officer's order---Assessment year 1991-92---Validity-- Section 17B of the Wealth Tax Act, 1963 enacted through Finance Act, 1992 was not applicable to an assessment year earlier to its date of enforcement---Inspecting Assistant Commissioner was not competent to revise the assessment framed in respect of the Assessment year 1991-92.
CIT v. National Security Insurance Co. Ltd., Lahore 2001 PTD 814 rel
(b) Wealth Tax Act (XV of 1963)---
----S.17B---Powers of Inspecting Assistant Commissioner to revise Wealth. Tax Officer's order---Assessment by Inspecting Assistant Commissioner was set aside in appeal---Fresh assessment by the Wealth Tax Officer---Revision by the other Inspecting Assistant Commissioner- Validity---First Inspecting Assistant Commissioner recorded the assessment order as an Assessing Officer which, on challenge, was set aside by the First Appellate Authority---Wealth Tax Officer, after remand framed the order which was sought to be revised by the second Inspecting Assistant Commissioner ---Since after remand the assessment order was passed by the Wealth Tax Officer, the Inspecting Assistant Commissioner had the justification to interfere in exercise of his powers under S.17B of the Wealth Tax Act, 1963 as the original assessment order recorded by an I.A.C. as an Assessing Officer was no more in the field.
(c) Wealth Tax Act (XV of 1963)---
----Ss.5(1)(xii) & 17B---Exemption---Foreign remittances---Evidence of foreign remittances had been lost for which F.I.R. was lodged with Police Station---Remittances were verified by a firm of Chartered Accountants---Such certificate was accepted by the Assessing Officer and exemption was allowed---Inspecting Assistant Commissioner revised the assessment order to the extent of acceptance of claim of foreign remittances and remitted the case to the Assessing Officer for de novo assessment---Validity---Assessing Officer accepted the certificate of a firm of Chartered Accountants which had absolutely nothing to do with the factum as to how and when a particular amount was remitted in foreign exchange through a particular Bank to a particular person---ii Chartered Accountant had to give such a certificate then it should have been supported either by the ",remitting Bank or the receiving Bank---In absence of a proof either by the sender Bank or the receiving Bank, the certificate issued by the firm of the Chartered Accountants was not worthy of any credit and therefore was rightly discarded by the Revising Authority---Certificate of a firm of Chartered Accountants supporting the claim of the assessee was totally irrelevant as to the grant of exemption- Claim of a receipt of foreign remittance through banking channel could only be verified by the channel viz. the Bank who acted as agent for receiving and distribution of the remittances.
(d) Wealth Tax Act (XV of 11963)---
----S.17B---Powers of Inspecting Assistant Commissioner to revise Wealth Tax Officer's order---Fresh evidence---Provisions of S.17B of the Wealth Tax Act, 1963 do not make it mandatory for a Revising Authority to search for fresh evidence in order to invoke the jurisdiction.
(e) Wealth Tax Act (XV of 1963)---
----S.17B---Powers of Inspecting Assistant Commissioner to revise Wealth Tax Officer's order---Change of opinion---Principle of change of opinion is not applicable to revisional jurisdiction under S.17B of the Wealth Tax Act, 1963.
(f) Wealth Tax Act (XV of 1963)---
----S.17B --Powers of Inspecting Assistant Commissioner to revise Wealth Tax Officer's order---"Definite information" ---Material on which an assessment order was framed could be gone into and there need not beg a definite information to revise an assessment under S.17B of the Wealth Tax Act, 1963.
Zia H. Rizvi for Appellant.
Muhammad Ilyas Khan for Respondent.
Date of hearing: 30th May, 2001
JUDGMENT
NASIM SIKANDAR, J.---This judgment will dispose of I. T.As. Nos. 540, 541, 542 and 543 of 2000.
2. The appellant in these further appeals under section 27 of the Wealth Tax Act, 1963 are an individual and an assessee of the Wealth Tax Department, For the assessment years 1991-92 to 1994-95 her declared wealth at various sums were rejected through *a consolidated order, dated 20-3-1998. The Assessing Officer proceeded to frame a consolidated assessment order for the aforesaid years while declining the claimed exemption as preferred under section 5(1)(x)(ii) of the Wealth Tax Act. 1963 as according to the Assessing Officer the petitioner failed to establish the receipt of foreign remittance through proper banking channel.
2-A. On appeal the case, was remanded by the First Appellate Authority through its order, dated 15-6-1996 after agreeing with the contentions put forth before it that relevant documents supporting the claim of receipt of foreign remittances had been lost for which an F.I.R was allegedly lodged with Police Station, Tariqabad, District Faisalabad on 23-3-1996.
3. After remand another consolidated assessment order for the aforesaid period was passed on 30-4-1997. This time the Assessing Officer allowed the claimed exemption in respect of the claimed foreign remittances allegedly received at Rs.2,24,00,000, RsA,74,00,000 and Rs.4,74,00,000 for assessment years involved. Earlier he opined that the claimed remittances were verified by a firm of Chartered Accountants and therefore, the claim was found to be in accordance with law.
4. Subsequently the concerned I.A.C. on 4-7-1996 served a notice upon the appellant as to why the aforesaid assessments should not be revised under section 17B of the Wealth Tax Act, 1963 on account of their having been erroneous as well as prejudicial to the interest of the Revenue. After usual proceedings, the I.A.C. through his order, dated 27-12-1999 set aside the consolidated assessment order framed after remand to the extent of acceptance of claim of foreign remittances and remitted the case to the Assessing Officer for de novo assessment. A specific direction was made that the assessee should be allowed adequate opportunity to discharge the burden of receipt of foreign remittances and her claim for exemption be considered thereafter.
The assessee challenged the aforesaid order before the Tribunal without any success. The impugned order of the I.A.C. was assailed primarily on two grounds. Firstly that section 17B providing -for revisional powers of I.A.C. having been introduced in the Wealth Tax Act by Finance Act, 1992 w.e.f. assessment year 1992-93 the assessment already framed in the year 1991-92 could not be touched. Secondly, that the original assessment having been framed by an I.A.C. another I.A.C could not take action under section 17B and that the revised order of the Assessing Officer framed after remand having been based on cogent evidence could not be revised in the given facts. The learned Tribunal however, disagreed with the assessee on both counts. Hence this further appeal for the assessee it is claimed that following questions of law have arisen out of the aforesaid consolidated order of the Tribunal:---
"(i)Whether on the facts and circumstances of the case, section 17B enacted through Finance Act, 1992 is retrospective or prospective in its effect as the amendment in law was inserted through Finance Bill, 1992?
(ii)Whether on the facts and circumstances of the case, the provisions of section 17B of the Wealth Tax Act, 1963 can lawfully be invoked on the same material on which assessment under sections 16(3)/23 of the Wealth Tax Act, 1963 was based without having in possession any other material amounting to definite information by the same officer (Annexure-G) issued by the I.A.C. before the finalization of the earlier assessment.
(iii)Whether on the facts and circumstances of the case, the transaction of Foreign Remittance made through Bank and as further verified by a qualified Chartered Accountant can be disbelieved without showing any mala fide intention on the part of the assessee?"
5. After hearing the learned counsel for the parties, we will readily agree with the submissions made by the learned counsel for the appellant that the Tribunal was not justified in holding that the I.A.C, was competent to revise an assessment order framed earlier, to the introduction of the provisions of section 17B of the Wealth Tax Act, 1963. The submissions made at the bar are supported by a recent judgment of this Court in re: CIT v. National Security Insurance Co. Ltd., Lahore 2001 PTD 814. In that case it was inter alia found that where the Assessing Officer was clothed with a fresh power to examine certain kinds of reserves that power could not be exercised to examine similar reserves in the assessment years earlier to the introduction of the amendment whereby the power was conferred for the first time.
6. That being so we will agree that the exercise of power under section 17B in respect of the assessment year 1991-92 was not within the competency of the revising authority.
7. The contention that the original assessment order having been passed by an I.A.C. another I.A.C. could not revise the same is necessarily misplaced. The Tribunal rightly found that the first I.A.C. recorded the assessment order as on Assessing Officer which, on challenge, was set aside by the Commissioner of Appeals. After remand the Wealth Tax Officer framed the order which was sought to be revised by the. second I.A.C. Since after remand the assessment order was passed by a Wealth Tax Officer, the I.A.C. had all the justification in the world to interfere in exercise of his powers under section 17B as the original assessment order recorded by an I.A.C. as an Assessing Officer was no more in the field. The contention based upon the premises has no validity at all.
8. Even on merits we are of the considered view that the assessee has no case at all. The claim of the assessee that the assessment order framed on remand having been based upon documentary evidence could not be revised is not worthy of serious consideration. As noted above, the Assessing Officer accepted the certificate of a firm of chartered accountants which had absolutely nothing to do with the factum as to how and when a particular amount was remitted in foreign exchange through a particular Bank to a particular person. If they had to give such a certificate then it should have been supported either by the remitter bank or the receiving bank. In absence of a proof either by the sending bank or the receiving bank, the certificate issued by the firm of the chartered accountants was not worthy of any credit and therefore was rightly discarded by the revising authority. There is clothing in provisions of section 17B which makes it mandatory for a. revising authority to search for fresh evidence in order to invoke his, jurisdiction. The principle of change of opinion is not applicable to revisional jurisdiction under section 17B. Also there is nothing in law to suggest that the material on which an assessment order was framed could not be gone into or that there had to be a definite information to revise an assessment under section 17B. The arguments made in this regard are misconceived.
9. For what has been said above, we will hold that section 17B enacted through Finance Act, 1992 was not applicable to an assessment year earlier to its date of enforcement. Therefore, the I.A.C. was not competent to revise the assessment framed in respect of the year 1991-92.
As to the other contentions of the appellant with regard to competency of the I.A.C. and the material on the basis of which he had proceeded, we find no substance in them. Also we are of the view that the certificate of a firm of chartered accountants supporting the claim of the assessee was totally irrelevant as to the grant of exemption. The claim of a receipt of foreign remittance through banking channel can only be verified by the channel viz. the Bank who acted as agent for receiving and distribution of the remittance.
10. That being, so these appeals succeed only to the extent of assessment year 1991-92 while they fail in toto in other three assessment years viz. 1992-93, 1993-94 and 1994-95.
C.M.A./M.A.K./A-351/LOrder accordingly.