(a) Words and phrases‑‑‑

‑‑‑‑"Order"‑‑‑Definition‑‑‑Order has been defined to be as decree, a judgment, a decision, mandate, a command or direction and is something different from request or a motion and is an authoritative document, which can be used, as and when required.

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

‑‑‑‑Ss. 66‑A & 59(1)‑‑‑Powers of Inspecting Additional Commissioner to revise Deputy Commissioner's order‑‑‑Self‑assessment‑‑‑Assessment year 1999‑2000‑‑‑ Acknowledgement slip was not an order but a deemed order and could not be cancelled under S.66‑A of the Income Tax Ordinance, 1979‑‑‑Validity‑‑‑Acknowledgement slip when filed comprises of two papers and it bears in unequivocal terms the language, which declares it to be an assessment order‑‑‑Legislature had not only declared the acknowledgement as an order but a formally prescribed language for the same‑‑‑ Prescribed words of such acknowledgement slip/ return include name, address, NTN, NIC number, declared income-tax paid and receipt of payment of tax from Bank etc. as an integral part‑‑‑Such was normally mentioned in an assessment order dictated by an Assessing Officer‑‑‑No reason existed, to say that such acknowledgement slip/return was not a complete order‑‑‑Order passed in the present case, had been passed where no detailed application of mind was required‑‑‑Assessing Officer's only job was to determine that the requirements of the Self‑Assessment Scheme were completed‑‑‑Cancellation of such order was fully justified.

2002 PTD (Trib.) 710 and 2002 PTD (Trib.) 580 distinguished.

1998 PTD (Trib.) 3718 rel.

(c) Income-tax‑‑‑

‑‑‑‑Per incurium judgment‑‑‑Deviation from earlier findings without reference to the same also makes a judgment per incurium.

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

‑‑‑‑Ss. 66‑A & 59(1)‑‑‑Powers of Inspecting Additional Commissioner to revise Deputy Commissioner's order‑‑‑ Self‑assessment‑‑‑ Assessment year 1999‑2000‑‑‑ Acknowledgement slip /return was neither an. "order" nor being on record of the department, could not be cancelled under S. 66‑A of the Income Tax Ordinance, 1979‑‑‑Validity‑‑‑Return form was in triplicate, the first copy of which was kept by the Bank' and the duplicate one was returned to the taxpayer after due seal and signatures of the Income Tax Authority while the third copy which was also duly filled in and stamped by the Bank was retained' in the assessment record which also bore the same language as was used in the other copies‑‑ Same was subsequently entered in demand and Collection Register and all other departmental formalities were completed except dictating an order by the designated departmental officer, which requirement had completed in the prescribed pro forma by the Legislature‑‑‑Second 'part of the said return deal with total income and payment of tax etc. and words used were "Total income and tax assessed", which meant that pro forma had been prescribed ultimately to make the same more as an order than an income tax return‑‑‑No concept of a deemed order existed anywhere‑‑‑ Legislature had declared a properly prescribed piece of paper as an order, which had to be treated as such‑‑‑Cancellation of order was fully justified in circumstances.

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

‑‑‑‑Ss. 59(1), 65 & 66‑A‑‑‑Self‑assessment‑‑‑Assessment order---Cancellation‑‑‑When the Legislature had declared some document to be an assessment order the same could be cancelled under S.65 of the Income Tax Ordinance, 1979 but when it was not held to be an order it could not have been cancelled.

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

‑‑‑‑S. 66‑A‑‑‑Powers of inspecting Additional. Commissioner to revise Deputy Commissioner's order‑‑‑Term "erroneous"‑‑‑Connotation‑‑‑Bad quality of assessment could not be covered with the definition of term "erroneous".

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

‑‑‑‑Ss. 66‑A & 59(1)‑‑‑Powers of Inspecting Additional Commissioner to revise, Deputy Commissioner's order‑‑Self‑assessment‑‑‑Prejudice caused to the interest of. Revenue‑‑‑Deviation from the requirements of Self‑Assessment Scheme‑‑‑Cancellation of‑‑‑Validity‑‑‑Income accepted and order passed under Self‑Assessment Scheme in deviation to the requirements prescribed therein, causes prejudice to the interest of Revenue being, without jurisdiction‑‑‑Erroneousness and prejudice to the interest of Revenue fully existing, cancellation was justified in circumstances.

Muhammad Iqbal Hashmi and Qadeer Ahmed, ITP for appellant.

Muhammad Akram Tahir, D.R. for Respondent.

Date of hearing: 3rd September, 2003.

ORDER

KHAWAJA FAROOQ SAEED (JUDICIAL. MEMBER).‑‑ This appeal has been filed by the assessee against the order under section 66‑A. The arguments against the same are of the first impression: as the AR has challenged the very assessment order. Firstly; he says that this is not an order, secondly; that this order is not a part of the record In support of his first claim he says that the C.B.R. while formulating Self‑Assessment Scheme has declared a copy of the return to be an order which of course has been duly stamped and signed by the designates officer at the time of filing of the return. This copy of the return in his opinion is a deemed order, which is not to be equated with an order hence, cannot be cancelled. In support of his second point his argument is that even if it is to be treated as an order. This is lying with the assessee while it is only an order on record, which can be cancelled. He further argued that the concept of prejudice to the interest of Revenue does not exist at all in this case, as it is only a presumption that in normal assessment the case .can fetch more income and tax. He said that this is neither a case of erroneous assessment nor any prejudice has been highlighted by the IAC to cancel the assessment. He said section 66‑A only provides jurisdiction if the order in assessment becomes a part of the record of the Department, which in present circumstances is missing.

The learned DR says that the Department had determined from the balance‑sheet filed by the assessee that the return submitted did not qualify. The requirements of the Self‑Assessment Scheme had not been fulfilled hence assessee was ineligible for acceptance under the said Scheme. The Assessing Officer accepted an assessment, which he legally could not. This way he had acceded beyond his jurisdiction. The cancellation therefore, is fully justified.

We have heard both and perused the record. The AR has referred a judgment reported as 2002 PTD (Trib.) 710 which says that a deemed order under section 59(A) cannot be equated with an actual order. He has further mentioned 2002 PTD (Trib.) 580 which says that normal assessment would result in a higher income is only a presumption*and section 66‑A does not permit cancellation on estimates. The higher Courts have never allowed cancellation of order on the bare feelings that normal assessment could fetch more tax. We consider this later argument of AR to be quite valid. However, this is not applicable on the facts and, circumstances of this case. The Legislature has held the acknowledgement slip to be an order and now it has to be treated as such. An order has been defined to be as decree, a judgment, a decision, mandate, a command or direction. It is something different than request or a motion and is an authoritative document, which can be used, as and when required. This acknowledgement slip when filed comprises of two papers and it bears in unequivocal terms the language, which declares it to be an assessment order. The same speaks as follows:‑‑

ASSESSMENT ORDER

The above return of income declared and tax paid is deemed to be an order of assessment under section 59(1) of the Income Tax Ordinance, 1979.

SealSignature of Income Tax Authority.

The legislature has not only declared the acknowledgement as an order but a formally prescribed language for the same. The prescribed words include name, address, NTN, NIC No., declared income, tax paid and receipt of payment of tax from bank etc. as an integral part. This is what normally is mentioned in an assessment order dictated by an ITO. We do not find any reason to say that this is not a complete order. In the circumstances in which this order has been passed, no detailed application of mind is required. The Assessing Officer's; only job is to determine that the requirements of the 'Scheme are complete. The judgment produced by learned AR, therefore, is considered as per in curium as the DR in the said case did not point out these facts before the Honourable Bench besides even otherwise facts of the cases are distinguishable. Further more it has ignored the judgment reported as 1998 PTD 3718 (Trib.) which speaks as follows:‑‑

"To sum up, having considered the provision of section 59(1) and comparing the same to the provisions of normal assessment under, section 62 and having considered the meaning of the word "assessment" in the context of the Self‑Assessment Scheme under section 59(1), and having distinguished the decided cases in respect of requirement of law for an order in writing as a prerequisite for levy of tax demand, we are of the considered opinion that in a case where return was filed under Self Assessment Scheme and which qualified for processing under such Scheme without requiring any adjustment under section 59(3) or otherwise so that the returned income is accepted in to as the assessed income, the requirement of an assessment in writing are sufficiently fulfilled by preparation of a tax computation sheet in the manner described in the prescribed IT 30 Form, duly signed by the Assessing Officer and such an order under section 59(1) can be held to have been properly made by the Assessing Officer for the relevant year. The contention of the appellant, therefore; that section 66‑A could not be invoked as there' was no order in writing for the years under appeal is, therefore, rejected on this ground."

Unfortunately this judgment has also not been produced by the either side before the said D.B./Deviation from an earlier findings without reference to the same also makes a judgment per incurium. In this regard it is worth‑mentioning here that learned AR later conceded to the extent that this acknowledgement slip is an order as have been so declared by the Legislature. However, he repeated that the same being not on the record of the Department, cannot be cancelled. This argument is also not of any help. In fact the return form is in triplicate, the first copy of which is kept by the bank and the duplicate one is returned to the taxpayer after due seal and signatures of the Income Tax Authority 'while the third copy which is also duly filled in and stamped by the bank is retained in the assessment record. It also bears the same language as is obtaining in the other copies: It is subsequently entered in Demand and Collection Register and all other departmental formalities are also completed except dictating an order by the designated departmental officer, which requirement has already been, completed in the prescribed pro forma by the Legislature. One more factor which requires mentioning is that in the second part of the said return which deals in total income and payment of tax etc. the words used are "Total income and Tax Assessed"

it means that the pro forma has been prescribed ultimately to make the same more as an order than an income tax return.

The upshot of above discussion is that there is no concept of deemed order anywhere in the world. The Legislature has declared properly prescribed piece of paper as an order, which has to be treated as such.

Our observation is further supported by a recent judgment of the Honourable Lahore High Court decided by Mr. Justice Nasim Sikandar and Mr. Justice Muhammad Sair. Ali. In the referred judgment it has been held that where in a case by virtue of an amendment brought on 2‑7‑1995 through Finance Act, 1995 declaring an order under section 59 or 59A a deemed assessment has been passed. It can be reopened under section 65 as the same formed the status of an order. Though the learned High Court has decided the case in favour of the assessee but the findings clearly give the above impression in a converse situation. The exact finding is as follows:‑‑‑

"In the case in hand original assessment was completed on 12‑12‑1991 and the additional assessment was completed on 20‑5‑1996. The assessee was served with notice for framing of additional assessment/reopening of the assessment on 17‑1-1995 much before introduction of proviso to subsection (4) of section 59 of the late Income Tax Ordinance, 1979. As observed earlier the introduction of these provisions providing for deeming of an assessment after a certain period, the addition of sub‑clause (c) in section 65(1) of the late Ordinance was of no significance at all. The day on which reopening which was initiated although amended provisions of section 65(1)(c) were very well in the field yet in absence of the corresponding, amendment providing for deeming an assessment under section 59 or 59‑A that action was not legally possible. In other words in absence of an assessment order in writing till the addition of proviso by Finance Act. No. 1 of 1995, dated 2-7‑1995, in section 59(1) no additional assessment could be framed unless the order sought to be reopened was an assessment order in writing under any of the provisions of the late Ordinance."

As a result after the assessment year 1995‑96 when the return filed would be deemed to be an assessment order under section 59 and 59‑A the provisions of section 65(1)(c) would come into operation. This means that the said order deemed to be an order can also be opened under section 65 after the assessment year 1995‑9d. The analogy which one can draw is that when the Legislature has declared some document to be an assessment order the High Court is of the opinion that it can be cancelled under section 65 but when it was not held to be an order it could not have been cancelled. This finding of the Honourable High Court fully support our views.

On merits in the present case the facts are not being denied. However, it has been argued by the AR that the capital of the assessee is at par with the requirements of the SAS. This argument is not supported by record as the working capital shown in balance sheet is Rs.2,69,937 while the income declared is Rs.62,000.

This brings us to the last argument for which another unreported judgment of the ITAT has been produced before us. We have already agreed in principle with learned AR that bad quality of assessment cannot be covered with the definition of the term "erroneous". However, in the present case the matter is to be seen from a different angle. The assessment has been framed by the Assessing Officer in excess of the jurisdiction available to him under law. He was to accept the return when the same fulfilled the requirements mentioned in the SAS. There was a pre‑requisite for qualifying under said Self‑Assessment Scheme. The Authority while signing the assessment order ignored that the case was not fit for acceptance. This matter is hit by the proviso of section 66‑A, which says that the order passed without jurisdiction is prejudicial to the interest of revenue. We have already held in a number of judgments that the income accepted and order passed under Self‑Assessment Scheme in deviation to the requirements prescribed therein, causes prejudice to the interest of Revenue being without jurisdiction. In the present case, therefore, erroneousness and prejudice to the interest of Revenue does fully exist. The cancellation, therefore, is fully justified.

The appeal is considered without merits hence dismissed.

C.M.A./1014/Tax (Trib.) Order accordingly.