Messrs AFNAN INTERNATIONAL, LAHORE VS SECRETARY, REVENUE DIVISION, ISLAMABAD
2004 P T D 2228
[Federal Tax Ombudsman]
Before Justice (Retd.) Saleem Akhtar, Federal Tax Ombudsman
Messrs AFNAN INTERNATIONAL, LAHORE
Versus
SECRETARY, REVENUE DIVISION, ISLAMABAD
Complaint No.855‑L of 2003, decided on /01/.
th
October, 2003. Income Tax Ordinance (XXXI of 1979)‑‑‑
‑‑‑‑Ss. 56, 80‑C & 143B‑‑‑Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), S. 2(3)‑‑‑Notice for furnishing return of total income‑‑‑Filing of statements under S.14313.of the Income Tax Ordinance, 1979 separately by the complainant/assessee and his father ‑‑‑Assessee and his father were maintaining joint hank account‑‑ No return was filed by them nor were insisted upon‑‑‑ Assessment was framed in the name of Association of Persons which was said to be on "agreed" basis on the ground of such joint account‑‑‑Application for withdrawal of complaint‑‑‑Validity‑‑‑Proceedings were beset with illegality and betrayed flagrant disregard of, law, rules and procedure not only by the Assessing Officer alone but also by those who gave approval for "agreed." assessment‑‑‑Neither there was any 'declared version' nor any "accounts" were presented because admittedly no Returns were filed‑ ‑‑Proceedings were finalized without any legal sanction‑‑ Complainant/assessee approached the Federal Tax Ombudsman on the very next day of the "agreement", alleging that all proceedings by the Taxation Officer were contrary to law, arbitrary, based on irrelevant grounds, involving exercise of powers for improper motive which tantamounts to administrative excesses‑‑‑Letter by the complainant/ assessee (filed before the date of hearing) requesting that the complaint may be treated as with‑drawn did not appear to have been filed voluntarily and without undue pressure from the concerned tax functionaries who obviously had a clear motive to cover up the illegalities committed in the assessment process‑‑‑Federal Tax Ombudsman recommended that the Central Board of Revenue may call for and examine the record to take requisite action, including possibility of an independent Audit in the present case and that the `tax functionaries' responsible for the above noted discrepancies be asked to explain their conduct ,for suitable departmental action.
Nemo for the Complainant.
Dr. Khalid Malik, (D.‑C.I.T.) for Respondent.
DECISION/FINDINGS
This complaint has been filed to agitate against assessment for the year 1997‑98 by treating the Complainant had his father as and AOP and determination of Income at Rs.916,363 on the basis of "agreed assessment".
2. The facts, in brief, are that the Complainant and his father are engaged in the import of machinery spare parts. They separately filed Statements under section 143B of the Income Tax Ordinance, 1979 (hereinafter called the repealed Ordinance) and were assessed on presumptive income under section 80C. When information was received that they were maintaining a joint account in Askari Bank, Badami Bagh, Lahore enquiry was initiated. The explanation, as submitted, having been found unsatisfactory, assessment was framed on 30‑5‑2003 determining Total Income in the name of AOP at Rs.916,363 which is said to be on "agreed" basis.
3. The respondent have forwarded parawise comments by the RCIT Eastern Region, Lahore explaining that the aggregated amount of deposits in the joint account at Rs.6,076,824 represented Sale proceed of imports as also sale of local goods in the market. It is reported by the RCIT that the assessment has been framed on `agreed basis' hence the complaint may be filed having become infructuous.
4. None was present for the Complainant when called out. On record is available letter, dated 21‑7‑2003 signed by the Complainants expressing the wish that the complaint may be treated as withdrawn as assessment has been finalized on `agreed basis'.
5. Dr. Khalid Malik (D‑CIT) appearing for the Revenue submitted that the absence of the Complainant from‑today's hearing confirms the genuine desire to withdraw the complaint which is the reason why they have filed a letter of withdrawal and are not pursuing the complaint.
6. A scrutiny of record, however, reveals that proceedings are beset with illegality and betray flagrant disregard of law, rules and procedure not only by the Assessing Officer alone but also by those who gave approval for "agreed" assessment and now submitted the comments.
Although separate notices under section 56 for the assessment years 1997‑98 to 2002‑2003 were issued on 3‑4‑2003, no returns were filed, nor were insisted upon. In this situation, when Returns were not filed, the assessments should have been framed ex parte and penalty proceedings initiated for default of statutory notices [this has been, done].
Combined Notice, dated 5‑5‑2003 under section 61 of the repealed Ordinance for the years 1997‑98 to 2002‑2003 was issued for 12‑5‑2003. This was followed by combined notice under section 62 on 17‑5‑2003 together with notice under section 13 for the assessment years for only 1997‑98 and 1998‑99 for hearing on 22‑5‑2003, when the matter partly discussed. (No conclusion is. recorded).
As per order‑sheet, dated 30‑5‑2003 (by the Taxation Officer) the Members of AOP offered for an "agreed assessment" for Assessment Year, 1997‑98 at a net Income Rs.916,363, This was accepted subject to payment of tax (ii) approved by higher authorities and (iii) proceeding for Assessment year, 1998‑99 to 2002‑2003 were filed.
This agreement is signed by the CIT, the IAC, the Complainant and his A.R. The concluding para. of the footnote to the assessment order, dated 30‑5‑2003 reads as under:‑‑
"During the course of assessment proceedings the assessee and his A.R. did not contest for the rejection of their account and declared version and offered to be assessed at net income of Rs.916,363. The offer is reasonable and accepted".
(here underlined for emphasis)
What is surprising is that there was neither any `declared version' nor any "accounts" were presented because admittedly no Returns were filed. Obviously proceedings were finalized without any legal sanction. That precisely is the reason why on the very next day of the "agreement", the complainant approached this Secretariat alleging that all proceedings by the Taxation Officer were contrary to law, arbitrary, based on irrelevant grounds, involving exercise of powers for improper motives which tantamounts to administrative excesses.
8. It also needs specific mention that the record has been haphazardly maintained with no separate cover for assessment order/ IT‑30 (ete). The order‑sheet also not been recorded from day‑to‑day.
9. In the aforementioned background, letter, dated 21‑7‑2002 (filed before the date of hearing) requesting that the complaint may be treated as withdrawn, does not appear to have been filed voluntarily and without undue pressure from the concerned tax functionaries' who obviously have a clear motive to cover up the illegalities committed in the assessment process. It is, therefore, Recommended that:‑‑
(i)The C.B.R. may call for and examine the record to take requisite action, including possibility of an independent Audit in the present case‑
(ii)The `tax functionaries' responsible for the above noted discrepancies be asked to explain their conduct‑for suitable departmental action.
9. Compliance be reported within 30 days of the receipt of this Order.
C.M.A./124/FTO Order accordingly.