COMMISSIONER OF INCOME TAX, ZONE-A, LAHORE VS Messrs SALEEM BROTHERS
2005 P T D 2366
[Lahore High Court]
Before Muhammad Sair Ali and Sh. Azmat Saeed, JJ
COMMISSIONER OF INCOME TAX, ZONE-A, LAHORE
Versus
Messrs SALEEM BROTHERS
Income Tax Appeal No. 141 of 1999, decided on /01/.
th
March, 2005. Income Tax Ordinance (XXXI of 1979)-----
----Ss.65 & 136---Appeal to High Court---Order of the Tribunal showed that there was no proof of any demand notice served upon the assessee and no assessment order was in the field to justify invocation of S.65, Income Tax Ordinance, 1979---None of the said factual positions had been controverted in the appeal by the Revenue---Question of law as claimed in the appeal did not arise for consideration by the High Court---Appeal was dismissed.
Muhammad Ilyas Khan for Petitioner.
ORDER
The learned Income Tax Appellate Tribunal in its order, dated 5-1-1999 dismissed the departmental appeal by observing as under: --
"(5) We have heard both the parties and have gone through the relevant orders. The learned D.R. defends the action of the Assessing Officer. He submits that the assessee was dealing with Pakistan Steel Mills Corporation Ltd. and has understated its income, therefore, the action of the Assessing Officer was in line with the provisions of law for reopening the assessments. It is further contended that the Assessing Officer issued notices under sections 61 and 62 of the Ordinance and also confronted the assessee, who failed to satisfy the Assessing Officer. The learned A. R. of the assessee contended that action under section 65 could not be taken by the Assessing Officer as no written order under section 59(1) was ever passed. The learned CIT(A) observed that "None of the office copies of the demand Notices, if ever issued; is available on record in support of the proof that the Demand Notice/I.T. 30 were ever served on the appellant assessee." He further observed that no assessment order was in the field as such question under section could not arise and hence cancelled the assessment order made under section 65 of the Ordinance. The provisions of section 65(1) expressly provide that where the return of income qualify for acceptance under SAS, the Assessing Officer shall assess, by the order in writing the total income of the assessee, on the basis of such assessment. The proviso to subsection (4) of section 59 stipulates that were such order not passed by the due date, the acknowledgement issued under section 55-A shall be deemed to be the assessment order. However, this proviso inserted by the Finance Act, 1995 whereas the present case relates to the assessment years 1992-1993, 1993-94 and 1994-95. We find that as no assessment order was made as required by section 59(1) of the Ordinance for the years under consideration, therefore, the issuance of notice under section 65 and re-opening of the case as such is. illegal, invalid and therefore the subsequent proceedings are also invalid. The learned CIT(A) has rightly annulled the assessments made under sections 63/65 of the Ordinance. We find no reason to interfere in the order passed by the learned CIT(A) and the same is maintained."
2. From the above observations it appears:--
(i)that there was no proof of any demand notice served upon the appellant-assessee;
(ii)that no assessment order was in the field to justify invocation of the provisions of section 65 of the late Income Tax Ordinance, 1979.
3. None of the above factual positions have been controverted in the appeal by the Revenue. In view thereof the question of law as claimed in the present appeal does not arise for consideration by this Court. Dismissed.
M.B.A./C-107/LAppeal dismissed.