Income Tax Ordinance (XXXI of 1979)---

----Ss. 65(2), 59(1) & 136(1)---Reference to High Court ---Additional assessment---Assessing Officer framed re-assessment after receiving information from Department of Excise and Taxation that assessee had got 6 (six) vehicles registered in their names since 1989---First Appellate Authority allowed partial relief---Tribunal, as a fact, found that alleged information pertained to two persons, who were different from the persons constituting the assessee at relevant time, Assessing Officer without considering the status of assessee issued notice under S.65 of the Income Tax Ordinance, .1979 and proceeded to frame re-assessment in year 1989-90 on the registered firm, which did not even exist in that year, according to the affidavits and statements of real owners, such two persons had nothing to do with the- income of 6 vehicles; while making assessment for year 1993-94 under S.59(1) of the Ordinance on 16-4-1994, alleged information was already available with Assessing Officer received vide letter dated 20-9-1993---Tribunal finally found that Assessing Officer without any definite information had proceeded under S.65 of the Ordinance and that assessment re-framed was mere a change of opinion---None of the questions framed for consideration of High Court arising out of such order of Tribunal, High Court declined to interfere.

Muhammad Ilyas Khan for Petitioner.

Khalil Ahmed Rao for Respondent.

ORDER

NASEEM SIKANDAR, J.---This is a case stated by the Lahore Bench of the Income-tax Appellate Tribunal framing following questions which are stated to have arisen out of their order recorded on 10-1-1996 on the cross-appeals of the assessee as well as the Revenue:---

"(i) Whether on facts and circumstances of the case, the information received from the Excise and Taxation Officer on 20-9-1993 showing Messrs Chohan, Flying Coach Service, Sahiwal as the owner of six passenger motor-vehicles can be rightly treated as definite information within the meaning of subsection (2)- of section 65 of the Income Tax Ordinance, 1979?

(ii) Whether on facts and circumstances of the case the Assessing Officer rightly issued on 14-2-1965 notice under section 65 of the Income Tax Ordinance, 1979 to the respondent assessee?

(iii) Whether on facts and circumstances of the case, the learners Appellate Tribunal is right .in holding that the Assessing Authority assumed jurisdiction under section 65 of the Ordinance, unlawfully?

(iv) Whether, on facts and circumstances of the case, the learned Tribunal has rightly annulled the additional assessment under section 65 of the Income Tax Ordinance, 1979 made on the ' respondent firm?"

2. According to the statement of the case, the assessee derives income from plying for hire a number of vehicles. On 20-9-1993, the Assessing Officer received an information from the Department of Excise and Taxation ' that Messrs Muhammad Jamil and Liaqat Ali proprietors of Messrs Chohan Flying Coach Service had got six vehicles registered in their names since 1989. The Assessing Officer finding that they had not shown any income in all the years under consideration i.e. 1989-90 to 1993-94 proceeded to re-open the assessments already. framed. On usual proceedings he concluded that there had been escapement of income, and therefore, proceeded, frame additional assessments by resort to the provisions contained in section 65 of the Income Tax Ordinance, 1979.

3. The learned First Appellate Authority allowed partial relief only by way of reducing .the income so' computed. On further appeal, however, the Tribunal was of the view that the Assessing Officer proceeded under section 65 without any definite information and that the assessment framed after re-opening were a case of mere change of opinion. In the view of the, learned Members it was established that there was no definite information before the Assessing Officer while initiating re-assessment proceedings. Thereafter, at the request of the Revenue, the aforesaid questions were framed for our consideration and reply.

4. After hearing the learned counsel for the parties, we will agree with the objection raised by the learned counsel for the respondent? assessee that none of the aforesaid questions arose out of the order of the: Tribunal. It will be seen that the Tribunal as a fact found that the alleged information pertained to two persons namely Muhammad Jamil and Liaquat Ali, who were different from any of the three persons constituting the assessee at the relevant time. It was noted that the learned Assessing Authority issued notice under section 65 of the Income Tax Ordinance, 1979 without considering the status of the assessee and proceeded to frame re-assessment in the year 1989-90 on the registered firm which did not even exist in that year. It was also noted that the affidavits filed by the real owners remained un-rebutted. From the affidavits as well as the statement of the real owners of the vehicles the Tribunal as a fact concluded that Muhammad Jamil and Liaquat Ali had nothing to do with the income of the said vehicles. Further that in the assessment year 1993-94 at the, time of making assessment for the year under section 59(1) of the Ordinance on 16-4-1994 the allege information was already available with the Assessing Officer received vide Letter No. 1405, dated 20-9-1993. That being $o the Tribunal finally concluded that it was a case of change of opinion and was not a case 'or availability of definite information of escapement of income.

5. That being so, as noted earlier, we will sustain the legal objection and hold that the questions as framed do not arise out of the order of the Tribunal.

Answer declined.

S.A.K./C-142/L ????????????????????????????????????????????????????????????????????????????????? Answer declined.