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

‑‑‑‑S. 83‑A‑‑‑Income of a minor child‑‑‑Parent‑‑‑Determination‑‑‑Result of words `minor child of the assessee and the assessee shall be the parent determined by the Deputy Commissioner of Income Tax' would be that a parent would be either father or mother of the minor child and none else‑‑‑Use of word `minor child' is not without any significance and the minor child would mean minor child of the assessee and undoubtedly a child would not' be taken to be a child of the grandfather or grandmother or a child of someone else than his own parents‑‑‑Opening provision of S.83‑A bf the Income Tax Ordinance, 1979 signified the relationship of minor with the assessee that the minor should be a minor child of the assessee‑‑‑Minor child could not be other than offspring of parent/ assessee who may be either his mother or father.

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

‑‑‑‑S. 83‑A‑‑‑Income of a minor child‑‑‑Explanation‑‑‑Parent‑‑‑Grand father‑‑ Explanation of S.83‑A of the Income Tax Ordinance, 1979 did not take away the very natural relationship of a minor child with the assessee and it only empowers the Assessing Officer to determine as to whether the father or the mother should be taken to be the parent of minor child for clubbing the income of minor child with the income of assessee/father or assessee/mother as the case may be‑‑‑Explanation could not be stretched too far to bring the grandfather of a minor to be determined as parent of minor child.

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

‑‑‑‑S. 83‑A‑‑‑Income of a minor child‑‑‑Parent‑‑‑Parent could be either father or mother of the minor child, and none else in the category of relationships for the purpose of S.83‑A of the Income Tax Ordinance 1979 and the Assessing Officer is only to determine as to who amongst the father or the mother if both are assessees would be the parent for the minor child for clubbing the income of minor child.

P.R. Aiyar's Concise Law Dictionary (1997 Edn.); Chambers Dictionary; Law Lexicon and Black's Law Dictionary; 5th Edn. ref.

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

‑‑‑‑S. 83‑A‑‑‑Income of a minor child‑‑‑Parent‑‑‑Grandfather‑‑‑Income of minor child was clubbed with the income of grandfather of the minor treating the grandfather as parent of minor‑‑‑Validity‑‑‑Clubbing of income of the minor with the income of the grandfather of the minor was improper and illegal and as such the action taken by the Inspecting Additional Commissioner under S.66‑A of the Income Tax Ordinance, 1979 was unsustainable in the eye of law and liable to be struck down‑‑ Order of Inspecting Additional Commissioner was cancelled by Appellate Tribunal and restored that of Assessing Officer finalized under S.59(1) of the Income Tax Ordinance, 1979.

AIR 1963 SC 677; (1954) 26 ITR 775; (1966) 62 ITR 526; (2002) 85 Tax 239; AIR 1963 SC 1279; (1966) 59 ITR 12 and 1995 PTD (Trib.) 289 not relevant.

Mansoor Ahmed Bajwa D.R. for Appellant.

Sardar Sikandar Hayat Khan for Respondent.

Date of hearing: 7th November, 2003.

ORDER

MASOOD UL HASSAN SHAH (JUDICIAL MEMBER).‑‑‑By this single order we intend to dispose of above appeals consolidatedly because, mainly a common question relating to the applicability of provisions of section 83A of the late Income Tax Ordinance, 1979 (hereinafter called the Ordinance) was involved.

2. In appeals/I.T.A. No. 414 to 418/IB of 2002, the assessee (Aleem Bin Attique) has assailed an order passed by the learned IAC (hereinafter referred to as the impugned order) passed by the learned IAC under section 66A of the Ordinance. The assessee has contested the impugned order on the following common grounds:‑‑

(i) that the order of the learned IAC was bad in law and against the facts of the case;

(ii) that the assessment finalized under section 59(1) was not erroneous insofar as the prejudicial to the interest of Revenue and that therefore, the provisions of section 66A of the Income Tax Ordinance, 1979 were not .attracted in this case and hence the action of learned IAC to cancel the assessment under section 66A was illegal and unjustified;

(iii) that according to provisions of section 83A of the Ordinance "any income chargeable under the head "income from business or profession" which is received by or arises or accrues: or is deemed to arise or accrue to any minor child of the assessee" such income shall be deemed to be the income of the assessee according to above section the income of Aleem Bin Attique could not be deemed to be the income of Haji Allah Rakha (grandfather of Aleem Bin Attique);

(iv) that the assessment could not be cancelled under section 66A for the following reasons:‑‑

(a) that the business has been acquired by Aleem Bin Attique and his mother. Zohra Saddiq through inheritance after the death of Attique‑ur‑Rehman (father of Aleem Bin Attique and husband of Zohra Saddiq);

(b) Aleem Bin Attique was not a minor child of Haji Allah Rakha (his grandfather) therefore, grandfather could not be treated as parent;

(c) that the business Messrs Ashyana Shaker Parian was jointly owned by Aleem Bin Attique and his mother Zohra Saddiq and not only by minor Aleem Bin Attique;

(d) that the mother of Aleem Bin Attique was still alive and looking after his business and also her child;

(e) that therefore, the direction passed by learned IAC to the Assessing Officer for fresh assessment in tile hand of Haji Allah Rakha was illegal and unjustified.

3. Hence the prayer of the assessee through these appeals for the annulment of the impugned Order.

4. In appeals/I.T.As. Nos.1 to 6/IB of 2003 (in the case of Haji Allah Rakha), the department has challenged the order, dated 12‑9‑2002 (hereinafter referred to as the impugned order) passed by the learned CIT(A). Islamabad. The department, while terming the impugned order as against facts and circumstances of the case has contested the same on the following common grounds for all the years under consideration.

(i) that the learned CIT(A) was not justified to vacate action under section 83A of the Ordinance, and

(ii) that the learned CIT(A) was not justified in vacating the action of the Assessing Officer regarding application of GP rate and assessment of business income etc.

5. Hence the prayer through these appeals for the vacation of the impugned order and restoration of that of the Assessing Officer.

6. In order to have a clear view of both sets of appeals relating to two separate assessees, we may like to state hereunder the facts of each set of the appeals one after the other:‑‑

I.T.A. No. 414 to 418 (Assessments year 1996‑97 to 2000‑2001)

(Master Aleem Bin Attique v. IAC)

7. In Appeals/ITA No.414 to 418/IB of 2002, the facts in brief as arise from the order passed under section 66A of the Ordinance are that the assessee being an individual deriving income from cold drinks declared income at (i) Rs.41,890 (ii). Rs.63,360 (iii) Rs.54,000 (iv) Rs.55,000 and (v) Rs.45,000 for the years under consideration respectively and except the return for the assessment year 1999‑2000 which was declared under SAS and all the returns were accordingly accepted under section 59(1) of the Ordinance. The learned IAC observed that the assessments framed were erroneous and insofar as were prejudicial to the interest of the Revenue and he accordingly issued notice under section 66A as reproduced in the impugned order. It was confronted to the assessee through notice that his grandfather (Haji Allah Rakha) and his attorney during the proceedings of the case stated before the Assessing Officer that father of the assessee had died and his grandfather was looking after the business of the assessee and that the returns were signed by his grandfather as has attorney. The notice further specified the date of birth of the assessee as 17‑11‑1993 as per-record. It was further stated in the notice that the assessee being minor and therefore, the provisions of section 83A of the Ordinance, 1979 were attracted in his case. The provisions of section 83A were reproduced in the said notice. The grandfather of the assessee (Haji Allah Rakha) attended in response to the said notice and he explained that his son Mr. Attique ur Rehman died in a road accident in 1993 and the assessee Master Aleem Bin Attique was born after four months of the death of his father and mother of Master Aleem Bin Attique remarried after sometime after the death of her husband but that marriage ended and she returned to the house to her deceased ex‑husband (Mr. Attique ur Rehman). In the impugned order, it was stated that the grandfather of the assessee admitted that his deceased son had never filed returns of income and he (grandfather) was doing the business on behalf of the assessee and the returns were filed and signed by him. Affidavit of grandfather and mother of the assessee were also filed in his regard. The learned IAC further observed that the examination of documents submitted during the course of proceedings revealed that the business was carried out by Haji Allah Rakha on behalf of Master Aleem Bin Attique and the stall was allotted/gifted by Messrs Shahi Beverages to Master Aleem Bin Attique on 17‑3‑1997 which clearly proved that this was net a case of inheritance. In view of these facts, the learned IAC declared the assessment finalized for the assessment years 1996‑97 to 2000‑2001 as erroneous insofar as prejudicial to the interest of the Revenue and accordingly cancelled the same under the provisions of section 66A for the reason that the business was actually being conducted by grandfather of the assessee (i.e. Haji Allah Rakha) during the period under consideration. The learned IAC thereby directed the Assessing Officer to make afresh assessments accordingly under the provisions of section 83A of the Income Tax Ordinance, 1979.

I.T.A. No. 1 to 6 (Assessment years 1996‑97 to 2001‑2002)

(CIT v. Haji Allah Rakha)

8. In respect of Appeals/ITA No.1 to 6/IB of 2003, briefly the relevant facts are that the assessee namely Haji Allah Rakha being an individual deriving income from sale of ice‑cream at Shakarpurian, Islamabad filed returns of income for the assessment year 2001‑2002 declaring net income at Rs.200,287 alongwith computation chart and wealth statement. The sales were declared at Rs.815,113 with GP rate at 30% and also property income and agricultural income and then claimed expenses under different heads to show net income at Rs.200,287. The return for the assessment year 2001-2002 was selected for total audit through computer balloting. The Assessing Officer processed the assessment. He compared the declared results of immediate preceding year of the assessee (Haji Allah Rakha) and his grandson namely Master Aleem Bin Attique and observed that the assessee has shown steep decrease in sales but maintained the expenses to keep the income at a required level. He further observed that the assessee has declared income from property for the first time at Rs.113,183. Thereafter, in response to notices under section 61/58(1) alongwith a check list as prescribed by C.B.R, the AR of the assessee attended the office and filed copies of rent agreement of property and copy of purchase deed alongwith photocopies of sale proceeds of shop, land, pay order and registration book. It was further observed by the Assessing Officer that the assessee was running two stalls of ice‑cream and `dhai bhallay' at Shakrpurian, Islamabad and was filing separate returns for each business and out of which one return was being filed in his own name and the other in the name of his grandson Master Aleem Bin Attique and both the returns were signed by the assessee (Haji Allah Rakha). The Assessing Officer further observed that Master Aleem Bin Attique was a minor and therefore, filing of separate return in his name was against the spirit of section 83A of the Ordinance and it tantamounted to furnishing of inaccurate particulars of income to avoid proper taxation which fell in the ambit of, concealment of income. Thereafter, the Assessing Officer gave details of the declared results of the assessments years 1996‑97 to 2001‑2002 in respect of Haji Allah Rakha/assessee and Master Aleem Bin Attique. While considering the provisions of section 83A and taking into account the fact of filing of separate returns, the Assessing Officer reopened the assessments in the case of assessee/Haji Allah Rakha for the assessment years 1996‑97 to 2000‑2001. The Assessing Officer mentioned in the assessment order that the assessments made in the hands of minor Aleem Bin Attique were cancelled by the IAC. The Assessing Officer issued notice under section 65 and the revised returns for the assessment years‑1996‑97 to 2000‑2001 were filed in response thereto with the remarks "As Before" for all the years. The AR of the assessee took the plea that Haji Allah Rakha has a separate business and his grandson/Master Aleem Bin Attique has his own business. The Assessing Officer did not accept the said contention of the AR of the assessee for the reason that Haji Allah Rakha during the course of income tax proceedings of Master Aleem Bin Attique himself attended on 15‑4‑2002 and stated that his son who was father of Master Aleem Bin Attique has died and his daughter‑in‑law has remarried and since then he was looking after the business of Master Aleem Bin Attique. It was further observed in the assessment order that prior to assessment year 1996‑97, the returns were signed by the mother of Master Aleem Bin Attique and from 1996‑97 these have been signed by the assessee/Haji Allah Rakha. The Assessing Officer then observed that filing of two separate returns one in the name of assessee himself and the other in the name bf grandson was sufficient evidence to prove the furnishing of inaccurate particulars of income which did not leave any, way for acceptance of plea of the AR. Then, the Assessing Officer, while finding no evidence in respect of declared sales of both the concerns for the assessment years 1997‑98 to 1999‑2000 and whole results being running on estimate basis, did not accept the declared version. While keeping in view the location of the business and the assessee having old experience in the business, the Assessing Officer estimated the sales from both the concerns at (i) Rs.700,000 (ii) Rs.850.000 (iii) Rs 950,000 (iv) Rs.1,050,000 (v) Rs.1,800,000 and (vi) Rs.1,883,866 and applied GP rate at 30 % and allowed expenses as claimed in both the concerns for the assessment years 1996-97 and 2000-2001 to 2002 and on estimate basis for 1997-98 to 1999-2000. An addition under section 13(1)(aa) of the Ordinance for assessment year 2000-2001 was also made in respect of deposit of amount of Rs.1,260,000 which was adjudged as investment in the shape of bank deposit made by the assessee without having explained the source of investment. It was done in view of the entries in the bank deposit of the assessee which were showing this amount. The plea of the assessee regarding the amount being 'advance' for gale of shop was not accepted. Finally, after adding property income as declared alongwith agricultural income of the assessee and also adding property income as declared in respect of grandson/Master Aleem Bin Attique, the Assessing Officer assessed total net income of the assessee/Haji Allah Rakha at (i) Rs.193,722 (ii) Rs.224,722 (iii) Rs.234,722 (iv) Rs.258,722 (v) Rs.1,634,106 and (vi) Rs.450, 429 for the year's under consideration respectively.

9. Against the said treatment, the assessee went in appeals before the first appellate forum and the learned CIT(A) vide impugned order, dated 12-9-2002 adjudged the action of the Assessing Officer of determining the income of the minor Master Aleem Bin Attique with the assessee/Haji Allah Rakha as parent of minor to be without any lawful authority. He, accordingly, vacated the said action with the direction that only business income which is earned by the assessee Haji Allah Rakha shall be assessed in his hands. In respect of other grounds of the assesses regarding excessiveness of income and. for not giving allowance for funds available with the assessee while snaking addition under section 13 and excessiveness of the GP rate, the learned Appeal Commissioner came to the conclusion that since the assessment has been vacated in clubbing of income and therefore, the other orders on other issues are also vacated. He accordingly directed the Assessing Officer to re-examine these issues in detail by affording a proper opportunity to the assessee to explain and then proceed as per law.

10. Hence these appeals of the assessee and the department on the grounds enumerated above separately for each set of appeals.

11. We have heard the learned representatives of the parties.

12. Firstly, leaving aside the other grounds as raised by the department in the case of assessee Haji Allah Rakha regarding estimation of business income and application of GP rate by the Assessing Officer, the pivotal issue which has been raised for adjudication and would set the whole controversy at rest involved in both the sets of appeals in the case of Haji Allah Rakha and his minor grandson (Master Aleem Bin Attique) was regarding the applicability of provisions of section 83A of the Ordinance, 1979 to the income of minor Master Aleem Bin Attique for being clubbed with the income of his grandfather (Haji Allah Rakha) in the given facts and circumstances. In the case of Master Aleem Bin Attique, the learned IAC while invoking the provisions of section 66A has cancelled the assessments which were finalized under section 59(1) and he directed to make fresh assessments under the provisions of section 83A with the conclusion that the business was actually being conducted by Haji Allah Rakha, the grandfather of the assessee/Master Aleem Bin Attique.

13. The learned counsel Sardar Sikandar Hayat Khan Advocate while appearing on behalf of both the assessees, one being appellant (Master Aleem Bin Attique) and other being respondent (Haji Allah Rakha), has taken the plea that the provisions of section 83A were not applicable to the case of minor Master Aleem Bin Attique because his grandfather (Haji Allah Rakha) was not a parent of the minor in terms of provisions of section 83A and the income of the minor could not to be clubbed with Haji Allah Rakha who was the grandfather of the minor. He, then, while referring to the provisions of section 83A contended that in Islamic Law the father and mother are considered parent of a child and parentage of a child was referable to father even if the marriage has been dissolved. In order to interpret the word `parent' mentioned in the said provision of law, the learned AR of the assessee referred the definition of `parent' as given at page No.1003 in Black's Law Dictionary 5th Edition and stated that the word `parent' meant the lawful father or mother of a person and that one who procreates begets or brings forth offspring. On this basis, he pleaded that the grandfather cannot be named as parent of a child because he does not beget the child. He further referred the definition of 'parent' as given in the said dictionary to the effect that the parent included either the natural father or the natural mother of a child born of their valid marriage to each other. He then stated that the word `determined' used in the `Explanation' of section 83A was also of much significance. He then tried to explain the term `determination' and stated that the term `determination', has got certain legal constraints and is to be judicially interpreted with a judicial decision. He referred a case of Indian Supreme Court reported as AIR 1963 SC 677 elucidating the expression `determination' as an effective expression of opinion ending a controversy or dispute by an authority. He then contended that authority acting judicially for solving a proposition is said to determine the proposition. He further contended that the DCIT could not nominate a grandfather to become parent of a minor child. He again referred to the criteria for a judicial decision as laid down in AIR 1963 SC 677 and stated that the determination must be on an objective approach. He contended that the parent of a child could be either his father or mother and none else and if both were the assessees/taxpayers then the DCIT will determine the parent with whose income the income of a child should be clubbed. He further explained that if both father mother of a minor child were earning income and were assessees then the income of the minor child would be clubbed with the income of one of the parent/assessee who was having higher income.

14. In respect of quantum of assessed income in the case of Haji Allah Rakha, the learned counsel of the assessee contended that the income estimated and assessed by the Assessing Officer was not based on any inquiry or material or any basis to that effect. He then cited a case from the Supreme Court of India reported as (1954) 26 ITR 775 to support his contention that no assessment and estimate could be made by the Assessing Officer on pure guess and suspicion and without any inquiry or, material evidence. He then further contended that if the income of minor (Master Aleem Bin Attique) is excluded from the income of his grandfather/Haji Allah Rakha then on the basis of new facts the entire assessment could be made. He, in respect of issue of estimation of income, referred a case from Andhra Pardesh High Court reported as (1966) 62 ITR 526. In respect of evidentiary value of `Survey forms' and signatures of the assessee obtained thereon, the learned AR of the assessee referred a decision of the Federal Tax Ombudsman in the case reported as (2002) 85 Tax 239 (FTO Pak) and stated that the signatures of the assessees on the `Survey forms' did not amount to agreement. He contended that any party in dominant position would influence the agreement between the parties which was not acceptable. In that regard he referred a case from Indian jurisdiction reported as AIR 1963 SC 1279 and then further referred another case law from Indian jurisdiction reported as (1966) 59 ITR 12 (Gujarat High Court).

15. While taking up the issue of cash credit in Bank Account, the learned counsel for the assessee, in respect of departmental appeals in the case of Haji Allah Rakah; contended that the learned Appeal Commissioner has rightly set aside the issue and the department will have to give set off between the income disclosed and, the income determined. In that regard, he referred a case of the Tribunal reported as 1995 PTD (Trib.) 289.

16. On the other hand, the learned DR vehemently resisted the contentions of the learned AR of the assessee regarding non‑applicability of provisions of section 83A to the proposition in hand. He contended that it was for the DCIT to determine the parent of the minor child for clubbing the income of minor child. However, he conceded that the Assessing officer should have given specific notice to Haji Allah Rakha to treat him as parent of minor child. In respect of action of learned Appeal Commissioner in the case of Haji Allah Rakha, the learned DR contended that the action was without any legal justification. In respect of the contentions of the learned AR of the assessee with regard to appeals in the case of Master Aleem Bin Attique, the learned DR reiterated the stance of the department that the provisions of section 83A of the Ordinance, 1979 were applicable to the income of the minor for clubbing the income of minor/grandson with his grandfather/assessee and as such the action of the learned Appeal Commissioner under section 66A was proper in the circumstances of the case.

17. We have considered the respective contentions of the parties and have thoroughly gone through the relevant provisions of the law alongwith case‑law as referred by learned AR of the assessee.

18. First of all, we take up the issue which is the main issue in both sets of the appeals regarding applicability of provisions of section 83A of the Ordinance, 1979 to the income of minor child. In order to have a clear view of the provisions of section 83A it would be convenient to reproduce the same, as under:‑‑

"Any income chargeable under the head "Income from business or profession" which is received by or arises or accrues, or is deemed to arise or accrue to any minor child of the assessee, such income shall be deemed to be the income of the assessee.

Provided that the provisions of this section shall not apply where the income of the minor child is derived from a business acquired by him through inheritance."

Explanation. For the purpose of this section, "assessee" shall be the parent determined by the Deputy Commissioner.

19. By considering the above provisions of law and while taking into account the contentions of both the sides, it becomes obvious that the income from business or profession of a minor child shall be deemed to be the income of the assessee/parent of the minor child as determined by the DCIT. But, however, this will not apply to the income of the minor child derived from a business acquired through inheritance. In the first paragraph of the above provisions of law, the words `minor child of the assessee have been used. In the Proviso, the income of the minor child from a business acquired through inheritance has been excluded from the ambit of provisions of section 83A. In the `Explanation', the assessee has been explained to the effect that the assessee shall be the `parent' determined by the Deputy Commissioner. Now, if we see to the words `minor child of the assessee' and `the assessee shall be the parents determined by the DCIT' jointly then the probable result would be that the parent would be either father or mother of the minor child and none else. The use of words `minor child' is not without any significance and the minor child would mean child of the assessee and undoubtedly a child would not be taken to be a child of the grandfather or grandmother or a child of someone else than his own parents. The very opening provisions of section 83A clearly signified the relationship of the minor with the assessee that the minor should be a minor child of assessee. A minor child cannot be other than offspring of parent/assessee who may be either his mother or father. The Explanation which has been given in the said provisions of law (Section 83A) does not take away the very natural relationship of minor child with the assessee and it only empowers the Assessing Officer to determine as to whether the father or the mother should be taken to be the parent of minor child for clubbing the income of minor child with the income of assessee/father or assessee/mother as the case may be. To our mind, the said Explanation cannot be stretched too far to bring the grandfather of a minor to be determined as parent of minor child. The word, `determine' has been defined in P.R. Aiyar's Concise Law Dictionary (1997 Edition) as to settle or decide or to come to a decision etc. In the Chambers Dictionary, the relevant meaning assigned to the word `determine' are to limit, to fix or settle, to define, to decide, to resolve, to cause to resolve, to put on end, to come to a decision and to come to an end. Now, firstly, we see to the word "parent" for its literal meaning as given in the Chambers Dictionary. Here `parent' means, someone who begets or brings forth offspring a father or a mother, a person who or the thing which produces etc. In the P.R. Aiyar's. Law Lexicon (1997 Edition), the `parent' has been defined as a person who has begotten or borne a child father or mother. The word `parent' or `parents' may be held to mean one of both parents. In the said law dictionary, even the step‑father or step‑mother have been excluded for being termed as parent. Further, in the law Lexicon, it is given that the term `parent and child' is used to indicate the relation existing between husband and wife, or either of them, on the one hand then legitimate offspring on the other. In the Black's Law Dictionary, 5th Edition, which has also been referred by the learned AR of the assessee, the term `parent' has been defined as `lawful father or mother of a person' and one who procreates, begets, or bring forth offspring. It is further stated in the said law dictionary that by statute the parent has been defined either the natural father or the natural mother of a child born of their valid marriage to each other etc. In all the above dictionaries, there is one thing common in the meanings of the word, `parent' and that is a father or mother of the child and the parent must be who has procreated or begot or brought forth the offspring. Therefore, in view of above definitions and the meanings assigned to the word `parent' by a general dictionary and specifically by the legal dictionaries referred to above, there appeared a common meaning and common definition in every perspective of the said term to conclude that a parent could be either father or mother of the minor child and none else in the category of relationships for the purpose of section 83A of the late Ordinance, 1979 and the Assessing Officer is only to determine as who amongst the father or the mother if both are assesses would be the parent for the minor child for clubbing the income of minor child. It has also been stated by the learned AR of the assessee that the C.B.R. through a Circular has instructed that the income of the minor child will be clubbed with the father assessee or the mother assessee whose income is higher than the other. Another situation has also been given exception from the operation of provisions of section 83A which is to the effect that where the income of the minor child is derived from a business acquired by him through inheritance. In such‑like situation, the case will not be governed by the provisions of section 83A of the Ordinance, 1979. Therefore, we are of the considered opinion that the contentions of the learned counsel/AR of the assessee as have been reproduced above were having force and liable to be accepted. Accordingly, the clubbing of income of the minor with the income of the grandfather of the minor was improper and illegal and as such the action taken by the learned IAC under the provisions of section 66A in the case of Master Aleem Bin Attique was unsustainable in the eye of law and as such liable to be struck down. Accordingly the impugned order of the learned IAC in the case of Master Ateem Bin Attique is cancelled and consequently the assessments originally finalized by the Assessing Officer under section 59(1) of the Ordinance, 1979 are restored.

20. Now in the case of assessee namely Haji Allah Rakha, on the basis of our above findings in the case of‑ minor/Master Aleem Bin Attique and on the same reasoning we endorse the action of learned CIT(A) taken in the impugned order, dated 12‑9‑2002 whereby he vacated the action of the Assessing Officer of determining the assessee namely Haji Allah Rakha as parent of minor namely Master Aleem Bin Attique by terming the same as without any lawful authority and directing the Assessing Officer that only the business income earned by appellant's .business concern shall be assessed in his hands.

21. Similarly, with regard to the other issues involved in the case of assessee/Haji Allah Rakha relating to the application of GP rate and assessment of business income and of addition under section 13, the action of the learned CIT(A) in the order, dated 12‑9‑2002 was also not liable to be interfered with because the issues have been set aside by vacating the orders on the said issues with the directions to the Assessing Officer for re‑examination of the said issues in detail by affording a proper opportunity to the assessee to explain and then to proceed as per law. As we have endorsed the above action of the learned CIT(A) on the issue of the determining the parent of the minor and his directions for only assessing the business income of assessee Haji Allah Rakha earned from his own business, therefore, it would be more appropriate that if reassessment is made in the case of Haji Allah Rakha in all respects as per directions of the learned CIT(A). Therefore, no exception can be taken to the action of setting aside the other issues for re‑examination. Accordingly, in our view, the impugned order, dated 12‑9‑2002 passed in the case of Haji Allah Rakha did not suffer from any infirmity and as such is liable to be maintained.

22. As a result of above, the appeals/I.T.A. No. 414 to 418/IB of 2002 in the case of Master Aleem Bin Attique shall stand accepted and departmental appeals/I.T.A. No.1 to 6/IB of 2003 in the case of Haji Allah Rakha shall stand rejected.

C.M.A./26/Tax (Trib.) Order accordingly.