I.T.A. No. 1662/LB of 2004, decided on 24th March, 2006. VS I.T.A. No. 1662/LB of 2004, decided on 24th March, 2006., 2006 PTD-INCOME-TAX-APPELLATE-TRIBUNAL-PAKISTAN 2058 (2006)

Income Tax Ordinance (XXXI of 1979)---

----Ss. 63 & 59---Survey for Documentation of National Economy Ordinance (XV of 2000), Preamble---C.B.R. Circular No.18 of 1999, dated 11-9-1999---Best judgment assessment---Self-assessment---Assessee was booked as new assessee as a result of survey---Ex parte assessment was framed by ignoring the aspect that assessee was already an existing taxpayer and return for the charge year had already been accepted under Self-Assessment Scheme---Validity---Assessee had categorically stated before First Appellate Authority that for the same assessment year the assessment stood finalized under Universal Self-Assessment Scheme in the light of C.B.R. Circular No.18 of 1999, dated 11-9-1999 relevant to the provisions of S.59 of the Income Tax Ordinance, 1979 whereas he was existing assessee---Assessing Officer proceeded ex parte under S.63 of the Income Tax Ordinance, 1979 on the basis of single notice, which could not be considered proper service from judicial point of view---Appellate Tribunal confirmed the setting aside with modification in the order of First Appellate Authority to the extent that the assessee will provide proof of his original assessment order Universal Self-Assessment Scheme and if the same was intact, the second assessment should be cancelled.

Siraj-ud-Din Khalid and Muhammad Younis Khalid for Appellant.

Anwar Ali Shah, D.R. for Respondent.

ORDER

This further appeal at the instance of the assessee pertaining to assessment year 1999-2000 has been directed against the impugned order, dated 17-1-2004 recorded by CIT(A) Bahawalpur, whereby the Revenue is aggrieved by setting aside of the assessment.

Brief facts of the case are that the assessee/appellant was booked as new case on the basis of survey form. According to the Assessing Officer, various notices on a number of occasions were issued and properly served upon the assessee but remained un complied with. Thus, the Assessing Officer finalized ex parte assessment by resorting to section 63 of the repealed Income Tax Ordinance, 1979, at an income of Rs.12,22,100. Feeling aggrieved, the assessee preferred appeal before CIT(A) Bahawalpur, who set aside the assessment for de novo proceedings with the direction to verify the facts of case.

The learned AR has vehemently argued that case of the appellant was booked as new assessee as a result of survey form submitted by Mr. Munir Ahmad and ex parte assessment was framed by ignoring this aspect of the case that the assessee is already a taxpayer existing at NTN 24-11-0957317 and return for the charge year had already been accepted under USAS. He has stressed that in the survey form, it was clearly mentioned by the assessee that he is an existing assessee at aforementioned NTN in the name and style Messrs Malik & Co. Shopping Centre, R.Y. Khan, but the Assessing Officer did not pay any heed to it and finalized double assessment for the same year.

On the contrary, the learned DR has submitted that since, the assessee did not adopt cooperative attitude with the Assessing Officer by absenting himself before him, therefore, he was justified to pass an ex parte order. He has also maintained that by setting aside the assessment for de novo proceedings in order to further probe in the matter, the learned CIT(A) has not caused any prejudice to the interest of assessee. In other words, the assessee has been afforded another opportunity of being heard, which should have been availed by him. Further, he has read before us the operative portion of impugned order passed by learned CIT(A), which is in the following manner:--

"Scrutiny of assessment record consisting of one volume reveals that the case was booked on the basis of survey form submitted by Mr. Munir Ahmad r/o 60/B Gulshan-e-Iqbal Rahim Yar Khan and assessed income for 1999-2000 at NTN 24-11-0049162. In the survey form, the appellant clearly stated his NTN 24-11-0957317, which was not considered by the learned Assessing Officer and finalized double assessment for 1999-2000. It is further noted that no single notice was served upon the assessee, which shows that the action of the Assessing Officer in passing the ex parte assessment order was incorrect. On perusal of copy of return submitted by the AR, it is observed that the appellant is an existing assessee at NTN 24-11-0957317 in name and style Messrs Malik and Company Shopping Centre, Rahim Yar Khan."

We have heard the arguments advanced on behalf of rival parties and also carefully gone through the relevant record available on file. The facts emanating from case file amply reveal that the assessee had categorically stated before the CIT(A) that for the same assessment year i.e., 1999-2000 the assessment stood finalized under USAS in the light of Circular No.18 of 1999 relevant to the provision of section 59 of the repealed Income Tax Ordinance, 1979 at NTN 24-11-009162 whereas he is existing assessee at NTN 24-11-0957317. Moreover, it is clearly reflecting that Assessing Officer proceeded ex parte under section 63 of the repealed Income Tax Ordinance, 1979 on the basis of single notice, which cannot be considered proper service from judicial point of view. Thus, in view of the aforementioned vital reason, we confirm the setting aside with modification in the impugned order of CIT(A) to the extent that the assessee will provide proof of his original assessment under USAS. If it is intact, the second assessment should be cancelled.

C.M.A./86/Tax (Trib.)Appeal accepted.