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

‑‑‑‑S. 59(1)‑‑‑C.B.R. Circular No. 7 of 2002, dated 18‑6‑2002, para. 9(a)(ii)‑‑‑Self‑Assessment Scheme, 2002‑2003‑‑‑Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), S.2(3)‑‑Self‑assessment, setting apart of‑‑‑Assessment year 2002‑2003‑‑‑Flour mill‑‑‑Net profit rate was only 0.216%‑‑‑Suppression of income‑‑ Setting apart for total audit on the basis of formula devised in agreement with the Flour Mills Association‑‑‑Validity‑‑‑Department was found to have had valid reason for its prima facie view that the complainant/ assessee's income had been suppressed‑‑‑While making the assessment of the Assessing Officer would consider the facts in the complainant/ assessee's case and would allow the complainant/assessee adequate opportunity of showing why in its case there could be a deviation from the formula agreed to by other flour mills‑‑‑Complaint was rejected by the Federal Tax Ombudsman.

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

‑‑‑‑S. 59(1)‑‑‑C.B.R. Circular No. 7 of 2002, dated 18‑6‑2002, para. 9(a)(ii)‑‑‑Self‑Assessment Scheme, 2002‑2003‑‑‑Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), S.2(3)‑ Self‑assessment, setting apart of‑‑‑Adjournment‑‑‑Selection being other wise valued could not be nullified for the reason that the hearing in the matter was not adjourned by the Regional Commissioner of Income Tax.

C.A. Habib, F.C.A., A.R. for the Complainant.

Asem Iftikhar, D.C.I.T., Circle 01, Rawalpindi and Muhammad Naeem Khan, Taxation Officer, Circle 40, Rawalpindi Zone for Respondent.

FINDINGS/DECISION

This is a complaint relating to the selection of the complainant's return for the assessment year 2002‑2003 for total audit under para. 9(a)(ii) of the Self‑Assessment Scheme for the year 2002‑2003.

2. The facts are that the complainant is an association of persons which runs a flour mill. For the assessment year 2002‑2003 sales were declared at Rs.105,793,900 with a gross profit of Rs.2,518,577 (which came to 2.4 % of the sales). After claiming administration and selling expenses net profit of Rs.228,650 was shown by the complainant. In his notice expressing the intention to select the case for total audit the RCIT gave the, following reasons for the proposed selection:‑‑

"(1) As per existing practice, normal law assessments in the case of Flour Mills are being finalized on "Formula Basis" agreed upon between the Income Tax Authorities and the Flour Mills Owners Association, Islamabad/Rawalpindi, keeping in view the Electricity power consumed or production.

2.On the basis of Electricity power consumed in your case, income works out as per detailed below:‑‑‑

Total Units Consumed‑972,376

100 Kgs. Bags production @ 5.25

Power unit per 100 K.G. Bag‑185,214

Net profit @ 13 per 100 Kgs. Bag‑2,407,788

Less Depriciation/Lease amount‑310,602

Balance Net Income (likely to be assessed)‑2,097,186"

The complainant vide a letter, dated 4‑1‑2003 applied for further two weeks for filing of explanation as the AR was statedly abroad. By another letter, dated 23‑1‑2003 the RCIT was requested to fix the case for any other date as the AR was not available on the original date. The case was, however, selected for audit by the RCIT and the complainant was informed accordingly. In the complaint the selection of the case for audit has been contested on the following grounds:‑‑‑

(i)It has been wrongly stated by the RCIT (in his letter intimating selection of the case) that the case has been discussed with the AR/complainant and that the income declared was not commensurate with the magnitude of the business. In fact no discussion took place between him and the AR or the complainant.

(ii)The complainant is not a signatory to the formula agreed by the Flour Mills Association. The formula was revised at a much later stage i.e. at least six months after the SAS was announced.

(iii)The complainant has shown a progressive increase in income as the declared income of Rs.228,660 represented a 26.84% increase over the income declared in the preceding years.

(iv)The complainant's mills is situated in a backward area of Attock where the margin of profit is low and it is not comparable with the mills which had accepted agreed formula.

(v)All the parameters for selection upheld by the superior Courts have not been followed inspirit.

(vi)The complainant is apprehensive that the treatment to be meted out to him would amount to maladministration.

It has been prayed that the selection of the case for audit be declared as null and void and the return be ordered to be accepted under the Self Assessment Scheme.

3. In the respondent's reply the selection of the case has, been defended and it has been reiterated that if the formula agreed to by other flour mills is applied in the complainant's case the income would work out to Rs.2,097,186 as against only Rs.228,650 declared by the complainant. During the hearing the respondent's representative also referred to the findings/decision in Complaint No.559 of 2002 in which the selection of the case of a flour mill was held to be valid as the declared net profit rate of 0.36% was considered to be too low. It was pointed out that in the complainant's case the net profit rate was only 0.216% and was thus definitely low particularly in view of the fact that according to the formula devised in agreement with the Flour Mills Association the complainant's income would be almost ten times higher. The contentions of the respondent are found to be quite valid and RCIT is found to have had valid reason for his prima facie view that the complainant's income had been suppressed. While making the assessment of course the Assessing Officer would consider the facts in the complainant's .case and would allow the complainant adequate opportunity of showing why in its case there could be, a deviation from the formula agreed to by other flour mills.

4. As regards the complainant's contention that it .was not afforded a hearing by the RCIT and also that it was

wrongly stated in the RCIT's letter intimating the selection for audit that the case had been discussed with the AR, the fact is that the matter of selection for audit could not be kept pending for long by the RCIT and if the particular Chartered Accountant dealing with the case was abroad the matter could have been represented by a member of the AOP or by some other partner of the relevant firm of Chartered Accountants. The selection being otherwise valid can, therefore, not be nullified for the reason that the hearing in the matter was not adjourned by the RCIT. Similarly the reference to a discussion with the AR/complainant is contained in the pro forma of the letter of intimation regarding selection for audit and any inaccuracy in this r9gard cannot be considered to vitiate the selection itself.

5. In the light of the above no reason has been found to intervene in the case and the complaint is accordingly rejected.

C.M.A./846/FTOComplaint rejected.