M. As. Nos.528/LB to 531/LB of 2003, decided on 23rd September, 2003. VS M. As. Nos.528/LB to 531/LB of 2003, decided on 23rd September, 2003., 2004 PTD-INCOME-TAX-APPELLATE-TRIBUNAL-PAKISTAN 708 (2003)

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

‑‑‑‑S. 56, proviso‑‑‑Finance Ordinance (XXV of 2001)‑‑‑Notice for furnishing return of total income‑‑‑Proviso to S.56 of the Ordinance has come as a remedy for the taxpayers and such limitation is an embargo on the Assessing Officer which has provided solace to the long hanging disadvantage to the assessee‑‑‑Such act has come as a remedy and has cured a fault‑‑‑Such amendments in law are known as curative and remedial legislation‑‑‑All the provisions that come to cure a mistake have always been considered as retrospective in operation.

1993 SCMR 73 and 1999 PTD (Trib.) 8 rel.

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

‑‑‑‑S. 56, proviso‑‑‑Finance Ordinance (XXV of 2001), Preamble‑‑ Notice for furnishing return of total income‑‑‑Proviso to S.56, Income Tax Ordinance, 1979 is retrospective in action‑‑‑Application in pending proceedings in appeal‑‑Said amendment being retrospective was applicable on all pending proceedings at any stage of the appeal.

Javed Aziz, D.R. for Applicant.

Nemo for Respondent.

Date of hearing: 16th September, 2003.

ORDER

KHAWAJA FAROOQ SAAED (JUDICIAL MEMBER). ‑‑‑These miscellaneous applications on behalf of the Department say that as per their record the case decided by the Assessing Officer was within time. They have mentioned dates of service of notice and the assessment order in the application.

It was pointed out to learned DR that these dates have neither been mentioned by the Assessing Officer nor by the First Appellate Authority. Furthermore, at the time of‑hearing before the Tribunal these facts were not brought to the knowledge of the Bench obviously because of non‑availability of record. Now at this stage through a miscellaneous application the Department has come up with some dates claiming that the assessment was not barred by time and record has been produced for verification. As mentioned above the First Appellant Authority has not referred the dates in his order. He has only given a finding that the case was time‑barred. We agree with him for the reason that his finding was categorical and that the Department had not produced any material or did not even argue as to how his finding was not legally and factually correct. Today the Department has sent the record. The record has been perused with the help of learned DR. The notice under section 56 obtaining on record is only in respect of assessment years 1991‑92 to 1993‑94. There is no notice on record in respect of assessment year 1990‑91 under section 56. The notice referred in the assessment order for the said assessment year, dated 28‑11‑1997, is not obtaining in the miscellaneous cover produced to us. The one referred in the miscellaneous application, dated 24‑1‑1998 is on record but the same is for the assessment years 1991‑92 to 1997‑98. If this is the record on the basis of which the Department wants us to rectify the order we would readily disagree. This record was not presented to us at the time of original hearing. It was not available even , on the date of hearing of miscellaneous application and has been produced to us later on before dictation of this order. It still does not obtain the notice under section 56 for 1990‑91.

Now we come to the provision of law referred by the Department statedly introduced by the Finance Ordinance, 2001. The proviso speaks as follows:‑‑

Section 56:

"Provided that no notice under this section shall be issued after the expiration of five. years from the end of the assessment year for which the return of income was due. "

This proviso has come as a remedy for the taxpayers. This is a limitation an embargo on the Assessing Officer which has provided solace to the long hanging disadvantage to the assessee. It has come as a remedy and has cured a fault. Such amendments in law are known as curative and remedial legislation. All the provisions that come to cure a mistake have always been considered as retrospective. This piece of legislation is fully covered by the famous judgment of Shah Nawaz Limited decided by the Supreme Court of Pakistan reported as 1993 SCMR 73: this judgment has subseq4ently been followed with approval for the obvious reason that it is by the apex Court of the country. Now we have long chain of reported judgments on the subject. For example Mr. Nasim Sikandar, Member, ITAT, as the then he was now Justice of the High Court in the judgment reported as 1999 PTD (Trib.) 8 while deciding an issue on rule 207A has considered the same as retrospective, being a curative and remedial legislation. The facts of this case are applicable on all fours on the. present case. Pending the assessment before any forum this limitation can be applied with full strength and its introduction on 1‑7‑2001 is of no help to the Department to target the assessees for a period prior to the same. In view thereof we have no hesitation in recording our obiter dicta in this miscellaneous application that this provision is applicable even in these cases.

The Department through these miscellaneous applications has opened a new pandora's box and we are obliged to dispose the same as per law, rules and judgment of the superior Courts before us.

The result of above discussion is obvious. This amendment is retrospective and is applicable on all pending proceedings at any stage of the appeal. It being so the order of the First Appellate Authority and its confirmation by the Tribunal needs no interference. The miscellaneous applications, therefore, are rejected.

C.M.A./1015/Tax (Trib.) Applications dismissed.