Income Tax Ordinance (XXXI of 1979)‑‑‑

‑‑‑‑S. 132‑‑‑Decision in appeal‑‑‑Cancellation of assessment by the First Appellate Authority in spite of observation that books of accounts were maintained by the assessee‑‑‑Validity‑‑‑First Appellate Authority on the one hand, had observed that books of accounts were maintained and on the other hand, it had cancelled the assessment‑‑‑When the Appellate Authority had observed that the books were maintained, it should have remanded the case to the Assessing Officer for its onward de novo consideration but the assessment was cancelled which was not warranted under law‑‑‑Orders of both the Authorities below were vacated by the Appellate Tribunal and case was remitted back to the Assessing Officer for its de novo consideration strictly on merits.

Tauqir Akbar, D.R. for Appellant.

Ch. Abdul Ghafoor, ITP for Respondent.

Date of hearing: 8th October, 2003.

ORDER

MUHAMMAD TAUQIR AFZAL MALIK (JUDICIAL MEMBER).‑‑‑This is an appeal against the order of CIT(A)‑II Faisalabad, dated 8‑10‑2002. They have called in question that no books of accounts likewise cash book, ledger, patient register, receipt register and vouchers were produced at the time of hearing on the plea that none were maintained.

That the appellant also could not produce books of accounts at the time of finalization of assessment for the assessment year 2000‑2001 and no appeal was filed against this order.

It is, therefore, prayed that the order of the learned CIT(A) be vacated and that of the Assessing Officer be restored.

Arguments heard. Record perused.

It has been pointed out by the AR of the assessee that CIT(A) has summoned the Assessing Officer and has given a very clear finding that, "the, Assessing Officer replied, that books of accounts as per rules were not maintained was also taken into consideration. The GIT(A) observed, "The Assessing Officer was not justified in ignoring the accounts books which were maintained in the light of reported case 2001 PTD (Trib.) 2038 and 2002 PTD (Trib.) 1583, dated 31‑12‑2000. The Assessing Officer was under obligation to issue specific notice under section 62 of the Ordinance wherein books were maintained, hence cancelled the assessment.

Our findings on the issue is as below:‑‑

"As far as maintenance of books of accounts are concerned, it is finding of fact, which is at variance by both the officers below. This case, seems to be a case of double jeopardy. On the one hand CIT(A) has observed that books of accounts were maintained and on the other hand, he has cancelled the assessment. It is wrong. If he has observed that the books were maintained, he should have remanded the case to the Assessing Officer for its onwards de novo consideration. But the assessment was cancelled. It is not warranted under the law. "

The order of both the Courts below are, therefore, vacated. The case is remitted back to the Assessing Officer for its de nova consideration and he is specifically ordered to decide the case strictly on merits.

C. M. A./1030/Tax (Trib.)Case remitted back.