(a) Survey for Documentation of National Economy Ordinance (XV of 2000)‑‑‑

‑‑‑‑S. 3(1) & First Sched.‑‑‑Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), S. 9‑‑‑Filing of question naires‑‑‑Survey of business‑‑‑Signatures on survey form‑‑‑Effect‑‑‑Signatures against items A, B & C of the Survey Form which was to be filled in by the survey team was a legal requirement and every assessee had to sign the same‑‑‑Signatures of the assessee done under the legal command could not be treated as an agreement by the assessee‑‑‑Mere affixing signatures against the entries of the form did not create any valid and binding agreement between the parties‑‑‑If, however, the assessee disagreed then proper investigation and stock‑taking was recommended by the relevant authority which followed that assessee's signature did not create any agreement‑‑‑If no objection was made, then it will be binding upon the party but not as an agreement.

(b) Survey for Documentation of National Economy Ordinance (XV of 2000)‑‑‑

‑‑‑‑S. 3(1) & First Sched.‑‑‑Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), S.9‑‑‑Filing of questionnaires‑ Survey of business‑‑‑Signature on Survey Form by husband of the assessee‑‑‑Without binding on the assessee‑‑‑Signature obtained or made by the husband of the assessee was not binding on her as her husband was not an attorney or authorized to sign such documents on her behalf‑‑‑Federal Tax Ombudsman recommended that Survey Form on which signature of assessee's husband appeared was illegal, void and not binding on the parties.

(c) Survey for Documentation of National Economy Ordinance (XV of 2000)‑‑‑

‑‑‑‑S. 3(1) & First Sched.‑‑‑Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), S. 9‑‑‑Filing of question naires ‑‑‑Survey of business‑‑‑Signature on Survey Form‑‑‑Filing of complaint was sufficient to establish that assessee had not agreed to the amount recommended by the Survey Team.

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

‑‑‑‑S. 3‑‑‑Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), S.9‑‑‑Income‑tax Authorities‑‑‑Commissioner was an "authority" under the law was bound to give correct information, otherwise if he tries to justify the illegal act, that will reflect upon his efficiency and knowledge.  

Masood Ishaq for the Complainant.

DCIT, Faisalabad for Respondent.

DECISION/FINDINGS

The complainant has challenged the entries made in the survey form during the third survey. She carries on business in the name and style of Messrs Pak Industrial Home Training Centre. It has been stated that she renders services of stitching and packing etc. of industrial gloves for her principal Messrs Shahzad Gloves Manufacturing Company, Exporter, Model Town, Lahore, and is a regular taxpayer. According to her, the receipts were duly verified by her principal and she is not rendering any service to any other party except her principal: In the survey form, she had declared annual receipts at Rs.1,850,000. For the assessment year 2000‑2001 filed on 31st October, 2000, annual receipts were declared at Rs.3,350,000 under the Self‑Assessment Scheme duly verified by her principal. It has been alleged that‑the Survey Inspection Team visited the premises on 18‑4‑2000 at 3.00 p.m. consisting of seven persons led by Captain Ehsan Ahmad and by exerting undue pressure, got unlawfully agreement signed (the form) showing annual receipts of Rs.80,000 by an unauthorized person, Mr. Muhammad Afzal son of Umer Din. It has been alleged that the agreement so executed is contrary to the assessee's volume of business. It has been pleaded that this agreement is without lawful authority.

2. In reply, the Commissioner of Income Tax/Wealth Tax, Faisalabad Zone, Faisalabad has stated that Survey Team did not commit any wrong by accepting the husband of the complainant as her lawful representative. It has been stated that the estimate has been made on agreement basis duly signed by the husband of the complainant. It has further been stated that under the Scheme, "the surveyees are at liberty not to opt to determine stock/turnover and in that case, as per procedure, detailed enquiries including inventories are required to be made by the back up teams. The determination made on agreement basis, cannot be questioned at this stage by either party".

3: Mr. Masood Ishaq, Advocate for the complainant contended that Muhammad Afzal, the husband of the complainant was forced to sign the form during the third survey. He further contended that Mr. Muhammad Afzal was not an assessee nor was he the attorney or authorized to represent and sign on behalf of the assessee. The department only reiterated what has been stated in the reply.

4. It is to be noted that the survey form is part of the Ordinance and therefore, each and every person is bound to obey it. As decided in Complaint No.582 of 2001, filed against the Spot Survey signature against items A, B and C of the Survey Form at the time of third survey which is to be filled in by the Survey Team is a legal requirement and every assessee has to sign it. The signature of the assessee thus made under the legal command cannot be treated as an agreement by the assessee. Mere affixing signature against these entries do not create any valid and binding agreement between the parties. However, if the assessee disagrees, then proper investigation and stock‑taking is recommended by the relevant authority. It, therefore, clearly follows that assessee's signature does not create any agreement. If no objection is made, then it will be binding upon the party but not as an agreement.

5. Next question for consideration is whether the complainant is bound by the signatures of her husband as obtained by the Survey Team headed by Captain Ehsan Ahmad. Without going into the detail whether it was obtained by force or not, it can be straightaway observed that under the Ordinance, only assessee has to affix the signatures. Admittedly, Muhammad Afzal is not an assessee. It is the complainant who is the assessee and her signature should have been obtained. Muhammad Afzal is not an attorney or authorized to sign such documents on behalf of the complainant. The legal position is clear and signature obtained or made by the husband of the complainant is not binding on her. Therefore, the complainant cannot be stated to have accepted the figure recorded by the Survey Team. The very fact that the complainant has filed this complaint is sufficient to establish that she has not agreed to the amount recorded by the Survey Team.

6. The legal position is so clear that the department should have considered it while making a reply but the Commissioner has only justified which is prima facie illegal. The Commissioner is an authority under the law and is bound to give correct information otherwise if he tries to justify the illegal act, it will reflect upon his efficiency and knowledge. It is sad that the Commissioner has justified illegal action and tried to defend it. It is, therefore, recommended that the survey form on which signature of Mr. Muhammad Afzal appears, is illegal, void and not binding on the parties.

C.M.A./608/FTO Order accordingly.