I.T.A. No.5740/LB of 2004, decided on 6th January, 2005. VS I.T.A. No.5740/LB of 2004, decided on 6th January, 2005.
2005 P T D (Trib.) 914
[Income-tax Appellate Tribunal Pakistan]
Before Jawaid Masood Tahir Bhatti, Judicial Member
I.T.A. No.5740/LB of 2004, decided on /01/.
6th January, 2005. Income Tax Ordinance (XXXI of 1979)---
----S. 59(1)---Self-assessment---Senior citizen tax rebate---Case was excluded from the Self-Assessment Scheme for the reason that assessee had taken the 20% increase more than last paid/payable tax after claiming the senior citizen tax rebate and the case of assessee was assessed under S.62 of Income Tax Ordinance, 1979---Validity---Assessing Officer while confronting the assessee pointed out that assessee had paid tax after claiming the senior citizen tax rebate which was quite against the spirit of Self-Assessment Scheme which according to Assessing Officer required that tax payable after all rebate should be 20% more than last paid/payable tax---For the qualification under Self-Assessment Scheme the words after all rebate had not been mentioned, meaning thereby that more than 20% increase as per last paid/payable tax may be after deductionofrebatestatutorilyallowableunderthelaw---Case of the assessee was qualified for Self-Assessment Scheme---Order of both the authorities were vacated by the Appellate Tribunal and directed the Assessing Officer to accept the case under Self-Assessment Scheme.
Saqib Sheikh for Appellant.
Anwar Ali Shah, D.R. for Respondent.
Date hearing: 6th January, 2005.
ORDER
The appellant through this appeal has objected to the impugned order of the learned CIT(A), dated 20-7-2004 on the followinggrounds:--
(1)That the both forums of below rank failed to appreciate that appellant s case was liable to be proceeded under section 59(1) of ITO, 1979.
(2)That without prejudice to above the learned CIT Appeals, Gujranwala, was not justified to deviate from his original appellate order 23000, dated 18-12-2003.
(3)That without prejudice to above both forums below rank misconstrued and misinterpreted the provision of Circular No. 7 of 2002.
(4)That the both forums of below rank failed to appreciate that there was no shortage of tax involved because assessee has availed his SSTR rightly.
(5)That both forums of below rank failed to appreciate that Senior Citizen Tax Rebate is part of Income Tax.
(6)That without prejudice to above the estimation of Sales at Rs.17,85,000 is highly excessive and unjustified.
(7)That the estimation of Income at Rs.21,50,000 against the declared income of Rs.1,68,080 is highly excessive and unjustified.
2.Mr. Saqib Sheikh, Advocate has contended that assessee has filed return for the year under review under self-assessment scheme declaring income from purchase and sale of Wan Sootri but the Assessing Officer excluded the case from SAS for the reason that assessee has taken the 20% increase more than last paid/payable tax after claiming the senior citizen tax rebate and the case of the assessee was assessed under section 62 of the Ordinance. He has contended that against treatment of Assessing Officer, the assessee filed appeal before the learned CIT(A) and vide order, dated 18-12-2003, the assessment was set aside for de novo consideration due to the contention of the assessee that short payment of tax was only due to claim of senior citizen tax rebate which was not accepted by the Assessing Officer and the evidence in this respect was not filed. According to learned Counsel, the evidence in this respect was filed before the Assessing Officer as well as before the learned CIT(A) but both the officers below have not considered it and the Assessing Officer during the course of second round while passing order under sections 62/132 without considering the directions of the learned CIT(A) has repeated the same fate which has without any justification been upheld by the learned CIT(A) during the secondroundofappealfiledbytheassessee.Learnedcounselforthe assessee has also placed before him a copy of NIC of the appellantSh. Muhammad Yousaf son of Sh. Muhammad Ishaq bearing NIC No.285-34-043361 wherein his date of birth has been shown as 1934. According to learned counsel, both the lower forums failed to appreciate that the appellant s case was liable to be proceeded under section 59(1) of the Repealed Ordinance as there was no shortage of tax involved because the assessee has availed his senior citizen tax rebate rightly.
3.On the other hand, learned DR is supporting the impugned orders of the officers below. He has contended that for the immediately preceding year the assessee had paid tax amounting to Rs.7,502 and for getting the case qualified to be assessed under self-assessment scheme for the year under appeal, he should have to pay more than 20% of the tax paid for the immediately preceding year. But he has paid only Rs.7,502 as against Rs.9,002 and according to learned DR the case did not qualify to be assessed under self-assessment scheme and the same has rightly been excluded from self-assessment scheme and the learned CIT(A) has rightly upheld the assessment order allowing relief in respect of estimated sales. According to learned DR no further relief is liable to be allowed to the assessee.
4.I have heard the learned representatives of both the sides and have also perused the impugned order of the learned CIT(A), the assessment order and the order of the CIT(A), dated 18-12-2003 setting aside the assessment during first round of appeal.
5.I have found that Assessing Officer has while confronting the assessee pointed out that assessee has paid Rs.4,500 after claming the STR which is quite against the spirit of self-assessment scheme which according to Assessing Officer requires that tax payable after all rebate should be 20% more than last paid/payable tax. But while perusal of the scheme for the year under review, I have found that for the qualification under self-assessment scheme the words after all rebate have not been mentioned, meaning thereby that more than 20% increase as per last paid/payable tax may be after deduction of rebate statutory allowable under the law and therefore I am of the view that the case of the assessee qualifies for the self-assessment scheme. Even otherwise, I have found while perusal of the order of learned CIT(A), dated 18-12-2003 that assessment was set aside for de novo consideration due to the contention of the assessee that assessee being a senior citizen is liable for the rebate in this respect and the evidence in this regard which was produced before the learned CIT(A) but he has remanded back the case with the direction to make de novo assessment after considering the assessee s case in light of age of assessee. But the Assessing Officer while making fresh assessment under sections 62/132 has nowhere mentioned regarding age of the assessee which is in fact more than 67 years and the same learned CIT(A) during the course of second round of appeal has upheld the treatment meted out by the Assessing Officer without taking into consideration the direction while setting aside the assessment. The impugned orders of the both the officers below are vacated and the return filed under self-assessment scheme is, therefore, directed to be accepted.
6.The appeal filed by the assessee is allowed.
C.M.A./363/Tax(Trib.)Appeal accepted.