Income Tax Ordinance (XXXI of 1979)‑‑‑

‑‑‑‑‑Ss.63, 85 & 116‑‑‑Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), S.9‑‑‑Best judgment assessment‑‑‑Demand and penalty‑‑‑Time‑barred assessment was finalized in back date‑‑‑Overwriting in the notice‑‑‑Service of notice on deceased assessee‑‑‑Complaint against‑‑‑Assessment order was in fact passed much after 3‑6‑2001 and cuttings etc. were made quite blatantly without any serious attempt to cover up‑‑‑Such was evident from examination of the demand notice under S.85 of the Income Tax Ordinance, 1979 which showed that initially the assessment year written in the notice was incomplete "2001‑2002" and this was scored out and Overwritten as " 1998‑99"‑‑‑Concerned person had begun to write the assessment year as "2001‑2002" which was not even the current year on the purported date 3‑6‑2001‑‑‑Current assessment year at that time was 2000‑2001 and someone could possibly make a mistake by mentioning the then current year on the demand notice but it was unacceptable that somebody would indicate the next assessment year viz. 2001‑2002 by mistake unless the demand notice was actually being prepared when the said assessment year was the current, year‑‑‑Date on demand notice clearly appeared as 3‑6‑2002 but the "2" was overwritten by " 1 " to make the date read as 3‑6‑2001‑‑‑Assessment order available with the complainant also showed that the date was clearly readable as "3‑6‑2002" which was obviously overwritten to make it appear as "3‑6‑2001 "‑‑‑Assessment order available on the tax record did not, however, show any such overwriting which showed that the order was changed by the Assessing Officer, who could not, however, change the assessment order sent to the complainant‑‑‑Notice under S.116 of the Income Tax Ordinance, 1979 was also dated 3‑6‑2002 which was later made to look as 3‑6‑2001‑‑‑Assessee had died on 15‑2‑2000 and the purported service of statutory notices relating to assessment proceedings was obviously quite fake‑‑‑Not a single report was available by the notice server or any other official that the assessment order and demand notice could not be served as assessee had expired‑‑‑In fact, the file was totally silent regarding any attempt to serve the demand notice before it was served on the legal heirs more than a year after its purported date of issue‑‑‑All this showed that the assessment order and demand notice were in fact, prepared much after the assessment had become time‑barred‑‑ Federal Tax Ombudsman recommended that (i) steps be taken by the Revenue Division to have the assessment for the year 1998‑99 annulled and (ii) disciplinary proceedings be initiated against the then Deputy Commissioner of Income‑tax on account of his obvious manipulation of records and compliance report be submitted within specified term.

Malik Abdul Haq, A.R. for the Complainant.

Muhammad Asif, A.C.I.T. for Respondent.

FINDINGS/DECISION

This is a complaint filed by the legal heirs of a deceased income tax assessee in which it is alleged that the income tax assessment for the year 1998‑99 was made in the case of the deceased after the assessment had become barred by time. The main points reflected in the complaint (which is written in rather a rambling manner) are as follows:‑‑‑

(i) Assessment for the year 1998‑99 was purportedly made on 3‑6‑2001 in which an income of Rs.228,957 was assessed against Rs.72,919 declared. A notice under section 116 of the Income Tax Ordinance, 1979 was also purportedly issued on 3‑6‑2001.

(ii) The so‑called assessment order dated 3‑6‑2001 .was served after a‑lapse of about 12 months. Over-writings in the demand notice, the assessment order and in the notice under section 116 make it quite evident that the assessment order was in fact, passed much after it had become time‑barred and the date originally written in the assessment order and the notices under sections 85 and 116 was obviously changed subsequently.

(iii) The statutory notices stated to have been served on the deceased were never in fact, served.

(iv) The assessment order for the year 1998‑99 was thus not passed on the purported date of 3‑6‑2001 but was entered in the back date after it had become time‑barred.

It has been prayed that the said assessment order be directed to be annulled.

2. The respondent's reply has been received and the representatives of the complainant and the respondent have been heard. The main points in the respondent's reply are as follows ‑

(i) The cutting on the demand notice and the overwriting of the date on the notice under section 116 does not indicate any mala fide and is only a correction of bona fide mistakes. There is no overwriting in the date mentioned in the assessment order, copy of which is enclosed.

(ii) The demand notice issued on 6‑3‑2001 could not be served till 12‑2‑2002 as it was reported that the assessee Ch. Shah Din had expired and the school which he was running was closed.

(iii) The assessment was framed ex parte under section 63 of the Income Tax Ordinance, 1979 at the income of Rs.213,956 on the basis of the history of the case as the income for the year 1997‑98 was Rs.148,596 after reduction by the CIT (Appeals). The departmental appeal filed with the Income Tax Appellate Tribunal is still pending.

(iv) The statutory notices (issued during assessment proceedings) were served by the notice server/daftry of the concerned Circle but the name of the person on whom the notices were served was not indicated by the notice server.

(v) The complainant should have filed an appeal against the order and there was no justification for moving the Federal Tax Ombudsman in this regard.

3. During the hearing it was further stated on behalf of the respondent that the case was duly entered in the Demand and Collection Register at Serial No. 108 of the BF portion of the register after which there were 44 more entries. It was further contended that there was thus no possibility of a back‑dated entry having been made in the DCR. The said register was, however, not produced during the hearing but the relevant income tax file was examined which left no doubt that the assessment order was in fact, passed much after 3‑6‑2001 and cuttings etc. were made quite blatantly without any serious attempt at cover up. This is evident from the following:‑‑‑

(i) Examination of the demand notice under section 85 clearly showed that initially the assessment year written in the notice was the incomplete "2001‑2002" and this was scored out and overwritten as " 1998‑99. It is to be noted that the concerned person had begun to write the assessment year as "2001‑2002" which was not even the current year on the purported date of 3‑6‑2001. The current assessment year at that time was 2000‑2001 and some one could possibly make a mistake by mentioning the then current year on the demand notice but it is unacceptable that somebody would indicate the next assessment year viz. 2001‑2002 by mistake unless the demand notice was actually being prepared when the said assessment year was the current year. Furthermore, the date of the demand notice clearly appeared as 3‑6‑2002 but the "2" was overwritten by " 1" to make the date read as 3‑6‑2001.

(ii) In the

assessment order available with the complainant also the date was clearly readable as "3‑6‑2002" which was obviously overwritten to make it appear as "3‑6‑2001 ". The assessment order available on the tax record does not, however, show any such overwriting which shows that the order was changed by the DCIT, Mr. Muhammad Saleem who could not, however, change the assessment order sent to the complainant.

(iii) The notice under section 116 of the Income Tax Ordinance, 1979 was also clearly dated 3‑6‑2002 which was later made to look as 3‑6‑2001.

(iv) It was also pointed on behalf of the complainant that Ch. Shah Din had died on 15‑2‑2000 and the purported service of statutory notices relating to assessment proceedings is obviously quite fake. It was also seen that there was not a single report by the notice server or any other official that the assessment order and demand notice could not be served as Ch. Shah Din had expired. In fact, the file is totally silent regarding any attempt to serve the demand notice before it was served on the legal heirs more than a year after its purported date of issue. This again shows that the assessment order and. demand notice were in fact, prepared much after the assessment had become time‑barred.

4. In the light of the above, its is recommended that ‑

(i) Steps be taken by the Revenue Division to have the assessment for the year 1998‑99 annulled.

(ii) Disciplinary proceedings be initiated against Mr. Muhammad Saleem the then Deputy Commissioner of Income Tax, Circle 44, Faisalabad on account of his obvious manipulation of records.

(iii) Compliance regarding (i) above be reported within 30 days and regarding (ii) above within 60 days.

C.M.A./468/FTO Order accordingly.