(a) Wealth Tax Act (XV of 1963)‑‑‑

‑‑‑‑S. 16(5)‑‑‑Assessment Order‑‑‑Assessment Order was passed without mentioning the name of circle, designation of officer passing the Order and also without issuance of notices under Ss. 16(4) and 16(3) of the Wealth Tax Act, 1963‑‑‑Validity‑‑‑Assessment order was not on a prescribed format and Assessing Officer had failed to mention the factor while necessitated him not to pass order on the prescribed format‑‑ Assessing Officer had passed an order by only mentioning as "under S.16(5)" on the right side of the upper portion without stating the factors which compelled him for passing such ex parte order and' also there was no mention of the issuance of any statutory notice prior to the framing of assessment‑‑‑Hand written order was even silent as to the closing para. of the order specifying the framing of assessment, issuance of copy of order with notice of demand‑‑‑Assessment order had not given the circle of assessment‑‑‑Appellate Tribunal vacated the order passed by the First Appellate Authority and cancelled the tax demand as there was no legally passed assessment order against the appellant/assessee in the circumstances.

1989 PTD 1302; 1989 PTD 1305; 1987 PTD (Trib.) 129 and 2003 PTD (Trib.) 2749 ref.

(b) Wealth Tax Act (XV of 1963)‑‑‑

‑‑‑‑S. 16‑‑‑Assessment order‑‑‑Essential ingredients of assessment order‑‑‑Assessment order has to be on a format as specified by the department itself, thus ensuring the presence of ingredients so set out; order should expressly mention the section under which it has been passed and not merely marking "section 16(5) (3);" issuance with the service of such statutory notices should be stated the reasons for assumption of jurisdiction by the Assessing Officer in a clear and categorical manner; factors necessitating for resorting to ex parte order under section 16(5)(3); concluding part after creation of tax demand validating the assessment made with the directions on issuance of copy of the assessment order with notice of demand shall be integral part of the assessment order and only the cumulative presence of the said pre-requisites could give a shape to any assessment order.  

Saeed Ahmed Chaudhary for Appellant.

Bashir Ahmed Shad, D.R. for Respondent.

Date of hearing: 11th September; 2003.

ORDER

The titled wealth tax appeal, has been filed by the appellant/assessee. Through this appeal setting aside of the assessment for fresh proceedings by‑the learned First Appellate Authority has been assailed.

Facts in brief giving rise to filing of this appeal are that the appellant/assessee has been assessed to tax not as per prescribed assessment order format but by hand written order even without mentioning the name of the circle, the designation of the officer passing the order and also the orders a to the issuance of notice of demand with copy of assessment order so framed. Statedly when the assessee became aware of the outstanding demand by recovery proceedings that duly attested duplicate of this assessment older alongwith notice of demand was obtained which only bears the signature and the official stamps of the Assessing Officer who has attested this duplicate copy. The copy of the assessment order placed before us is reproduced verbatim as under:‑‑

"Mian Mushtaq Ahmed 1994‑95

Declared wealth Rs. 969,000 Immovable:‑‑

2‑Shops at Lahore Plaza T/Ship Lahore.

"The assessee has declared the value of the shops at Rs.5,50,000 which seems to be very low. The Lahore Plaza is one of the big plazas of main Peco Road, Lahore. The value of the shops adopted at Rs.15,50,000.

Movable

Declared is accepted subject to action under section 17/35. Rs.4,19,000.

By this order after rejecting the declared value of the shop that value has been adopted as is evident from the order ibid.

The appellant/assessee went in appeal and the learned First Authority by reaching to the following conclusions disposed of appeal:‑

"It shall be fair and just, if the assessment in question is set aside for fresh proceedings with special reference to allow proper opportunity of being heard to the appellant. Nevertheless, assessee is also directed to make proper compliance of the requirements of the proceedings as to help to arrive at a fair and just assessment."

This order passed at the first appeal stage has brought the appellant/assessee in appeal in this Tribunal.

The learned AR contested this setting aside by submitting that legally there was no order which was passed, therefore, it should have been declared at the first appeal stage as ab initio illegal, secondly the passing of ex parte' order under section 16(5) of the Wealth Tax Act, without mentioning as to the, issuance/service of such notices under sections 16(4) and 16(3) of the Wealth Tax Act has also made the order illegal ab initio. The learned AR also challenged the improper valuation of the shop being not in conformity with the Wealth Tax Rules. The learned AR also contested the charging of additional tax at Rs.21,844 without mentioning the section for so levying the additional tax by pointing out of the clear discrepancies. By these submissions the learned AR prayed for annulling the assessment.

On the other hand the learned DR supported the setting aside with directions by the learned First Appellate Authority but when his attention was drawn that why the assessment order is not on a prescribed format and the Assessing Officer has failed to mention that what factor necessitated for passing the order not on the prescribed format and importantly the Assessing Officer has passed an order by only mentioning as "under section 16(5)" on the right side of the upper portion without stating the factors which compelled for passing this ex parte order and also there is no mention of the issuance of any statutory notice prior to framing this assessment. This hand‑written order is even silent as to 'the closing para. of the order specifying the framing of the assessment issuance of the copy of the order with notice of demand. This assessment order, has not given the circle of assessment with verification that office copy was signed with the mark of Sd/‑ and official stamp on it. Similarly is the position even of the notice of demand. The learned DR could not explain for these discrepancies.

The learned AR in support of his arguments that tax demand created is not maintainable in law has also referred to the following reported judgments:‑‑

(I) 1989 PTD 1302; (II) 1989 PTD 1305; (III) 1987 PTD (Trib.) 129 and (IV) 2003 PTD (Trib.) 2749.

Such ibid reported judgments dealt with the situation where without any written assessment order are simply on the (sic) IT‑30. Form with notice of demand that tax demand was raised against the assessee but here in appeal before us the situation is entirely different as the copy of the order is there but it is depicting that essential ingredients of an assessment order are missing which are as under:‑‑

(1) The assessment order has to be on a format as specified by the department itself, thus ensuring the presence of ingredients so set out.

(2) Order should expressly mention the action under which it has been passed and not merely marking "Section 16(5)".

(3) Issuance with the service of such stationery notices should be stated. The assuming of jurisdiction by the Assessing Officer should be in a clear and categorical manner.

(4) Factors necessitated for resorting to ex prate order under section 16(5).

(5) Concluding part after creation of tax demand validating the assessment made with the directions on issuance of copy of the assessment order with notice of demand shall be integral part of the assessment order.

(6) Only the cumulative presence of the above pre‑requisites could give a shape to any assessment order.

After hearing the arguments placed at bar before us, on perusing of the record and keeping in view the discussion supra we feel persuaded to vacate the order passed by the learned First Appellate Authority and cancel the tax demand as there was legally no assessment order passed against the appellant/assessee.

C.M.A./39/Tax (Trib.) Appeal accepted.