I.T.As. Nos. 1222/KB to 1224/KB of 2004, decided on 7th January, 2006. VS I.T.As. Nos. 1222/KB to 1224/KB of 2004, decided on 7th January, 2006., 2006 PTD-INCOME-TAX-APPELLATE-TRIBUNAL-PAKISTAN 2154 (2006)

(a) Income-tax---

----Appeal---Use of old form of appeal instead of new form---Effect---In appeal substantial legal requirements and procedural formalities had duly been complied with, only form of a appeal inadvertently used by the appellant for the reason of non-availability of the new forms, would not vitiate the legal appellate proceedings, otherwise competent in law, to the extent of denying appellant his right of appeal.

(b) Income-tax---

---Appeal---Procedural compliance---Extreme view towards procedural compliance to the extent of denying the right of appeal cannot be endorsed.

2002 PTD 541 and PLD 175 SC 678 rel.

(c) Income-tax---

----Rules of procedure are meant to advance the cause of administration of justice rather than to thwart it---Technicalities should never undermine the advancement of purpose for which law establishes quasi-judicial forums.

PLD 175 SC .678 rel.

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

---Ss. 52A & 50(4)---Liability of person failing to deduct or pay tax---Re-imbursement of amount---Taxation of---Validity---Payment made by the payer had been qualified to the extent of covering the payments on account of supply of goods or for services rendered to or the execution of a contract only---Re-imbursement of the amount by the payer to the recipient could not be parturitioned as payment envisioned in S.50(4) of the Income Tax Ordinance, 1979---Once it was established that the amount received by the assessee was not on account of supply of goods, or for services rendered or the execution of contract, the provisions of S.52A read with S.50(4) of the Income Tax Ordinance, 1979 could not be trotted out---Orders passed under S.52A of the Income Tax Ordinance, 1979 were erroneous in facts and law, the same were vacated/cancelled by the Appellate Tribunal.

(e) Income-tax--

---Income tax proceedings---Principles of natural justice---Appli?cability---proceedings are quasi-judicial in nature and principles of natural justice are attracted, particularly relating to opportunity of being heard etc.

(f) Interpretation of statutes---

---Fraus Legis---Departmental action---Analogy derived from latest legal principle `Fraus Legis' developed by Court of justice of European Communities, prevents the endorsement of department action which could mean an abuse of a statuary provision by circumventing assessee's factual position or running contrary to spirit envisaged in law.

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

----Ss.86 & 52A---Charge of additional tax for failure to deduct and pay tax---Application of provision on the payer and not on recipient---Provisions of S.86 of the Income Tax Ordinance, 1979 were not attracted in case of default by the recipient and could be invoked in case of default by the payer only.

(h) Income Tax Ordinance (XXXI of 1979)---

----S.86---Charge of additional tax for failure to deduct and pay tax---Order passed without issuing show-cause notice---Validity---Orders under S.86 of the Income Tax Ordinance, 1979 were not sustainable in law as those orders were passed in a mechanical manner, without issuing any show cause or confronting the assessee in this behalf.

1970 SCMR 226; 2001 PTD 2906; 2004 PTD 1499 and 2004 PTD 1179 rel.

(i) Income Tax Ordinance (XXXI of 1979)---

---S.52A---Liability of person failing to deduct or pay tax---Liability of payer and recipient---Prior to insertion of S.52A of the Income Tax Ordinance, 1979 in the statute book, only payer was treated as assessee in default on failing to deduct advance tax in terms of S.52 of the Income Tax Ordinance, 1979, and no default of the recipient was visualized on the part of the recipient---By introducing S.52A of the Income Tax Ordinance, 1979 in the statute book the recipient was made liable to pay tax in view of failure on part of the payer to withhold tax at the time of making payments to the recipient.

(j) Interpretation of statutes---

----Statutes dealing with substantive rights are prima facie/generally prospective unless it is expressly or by necessary implications made to have retrospective operation---Rule in general is applicable where the object of the statute is to affect the vested rights or impose new burdens or to impair existing obligations.

Maxwell on the Interpretation of Statutes, 12th Edn. and Francis Bennion's Statutory Interpretation 2nd Edn. rel.

(k) Interpretation of statutes---

----Prospective and retrospective effect of law---New Act/Rule affecting, existing rights or creating new obligations, is presumed to be prospective only---Person could not be saddled with additional liability or burden in retrospection for no default on his part.

(l) Income Tax Ordinance (XXXI of 1979)---

----S.52A---Liability of person failing to deduct or pay tax---Prospective application---Provisions of S.52A of the Income Tax Ordinance, 1979 will apply to the cases involving default during the financial year 1999-2000 and could be invoked for the assessment year 2000-2001 onwards.

1985 PTD 529; 2004 PTD 921; (1988) 75 Tax 71 and 1988 SCMR 715 rel.

Kafil Ahmed Abbasi for Appellant.

Ghulam Shabbir Memon, D.R. for Respondent.

ORDER

S.A. MINAM JAFRI (ACCOUNTANT MEMBER).---The above appeals have been filed at the instance of the assessee appellant an individual. Common issues have been raised vide the grounds of Appeal in all these appeals. Same are heard and disposed of through this consolidated order.

2. Brief facts depict that the appellant, being a contractor and Proprietor of Messrs Naqvi Builders submitted the statements under section 143-B for the above three assessment years which were duly accepted and finalized accordingly.

3. Consequent to filing of above statement, the Assistant Commissioner Sukhar. Issued a letter, intimating to have received definite information about some payments amounting to Rs.30,21,000 which had been received by appellant from Red Crescent Society during Financial Years 1997-98, 1998-99 and 1999-2000. corresponding to Assessment Years 1998-99, 1999-2000 and 2000-2001 respectively. It was stated in the said letter that appellant had received benefits from such receipts therefore the same were liable to tax deduction @ 5% hence action under section 52 A of the Income tax Ordinance, 1979 was attracted.

4. In response assessee denied the Departmental contention and it was stated that the appellant never received any amount liable to tax deduction from Red Crescent during above mentioned period. Assessee took plea that the amount of Rs.30,21,000 received during above mentioned financial years was in fact the reimbursement of actual cost of the project, and no element of profit was involved as the same was for charitable purposes. Application of section 52-A was also objected on legal plane for having wrongly applied retrospectively for the period prior to its insertion by Finance Act, 1999.

5. The Assistant Commissioner did not find the said explanation convincing and proceeded to finalize the orders under section 52A of the Income Tax Ordinance, 1979 .creating thereby a total demand of Tax under section 52 A amounting to Rs.1,51,050 and also imposed Additional tax for the three years amounting to Rs.1,37,487 respectively.

6. Against the said orders appellant preferred appeal before the learned CIT (A) Khairpur, who has concurred with the Assessing Officer, and confirmed the treatment meted out by the Taxation Officer, both under section 52-A and section 86 of the Income Tax Ordinance, 1979. Being aggrieved by the order passed by the CIT (A) Sukkar, the appellant has preferred the instant appeals on the following common Grounds: -

Grounds of Appeal

(i) The learned CIT (A) erred in law and facts by holding that provisions of section 52-A are attracted in the case of the appellant who was not liable to tax otherwise.

(ii) The learned CIT (A) erred in law by holding that the provisions of section 52 A having been inserted by Finance Act, 1999 could be invoked for any year prior to its insertion, hence approved the application retrospectively.

(iii) The learned CIT (A) was not justified to concur with the finding of the DCIT while approving demand levied under section 52A without appreciating that provisions of section 52A could only be attracted in law for the period of default during 1/7/99 onwards i.e. after its insertion in 1999.

(iv) The learned CIT(A) has seriously erred in law and fact confirming the demand under section 86 of the Income Tax Ordinance, 1979 without appreciating that it can be attracted in the case of assessee in default who fails to deduct tax i.e. PAYER and not in the case of RECIPIENT.

(v) Any other ground with the permission of the Honourable Tribunal arising at the time of hearing these appeals.

7. On the date of hearing the learned DR of Income tax Department, raised an objection on the Form of Appeal used by the appellant in these appeals. It was argued that since the appeals have not been filed by adopting the correct procedure in terms of Income Tax Ordinance, 2001, hence the same are liable to be rejected on this ground

alone.

8. Learned Counsel for the appellant in response submitted that such objection was neither raised by the learned Assistant Registrar Income Tax Appellate Tribunal at the time of presentation of these appeals. Nor the same was ever communicated for compliance before this date of hearing. He exhorted that the said objection has no substance in law. According to the learned Counsel, the appellant while filing these appeals, has complied with all the legal as well as the procedural formalities and no substantial default or lacuna can be pointed out in these appeals which were filed within prescribed limitation provided under the relevant provisions of law after making the payment of Appeal fee for the all the three assessment years. Memo. of Appeal as well as the grounds of Appeals along with its necessary Annexure are in order and contain the particulars relevant for the purpose of 'hearing these appeals by the learned Income Tax Appellate Tribunal. According to the learned Counsel the form used for the purposes of submitting Memo. of Appeals as prescribed in the Rules relating to Income Tax Ordinance, 1979 was used inadvertently, for the reason that the Forms prescribed by New Rules were still not available in printed form in the market. He further proceeded to argue that it is trite principle of law and Natural Justice that no body shall be denied a substantial statutory right of appeal on mere technical and procedural lapse.

9. I have carefully examined the contention of both the parties and perused the relevant provision of law relating to filing of appeal before the Income Tax Appellate Tribunal as well as the Rules framed in this regard. I am persuaded to agree with the contention of the learned Counsel for the appellant that in instant appeals, substantial legal requirements and procedural formalities have duly been compiled with. Only Form of Appeal inadvertently used by the appellant for the reason of non-availability of the new forms, will not vitiate the legal appellate proceedings, otherwise competent in law, to the extent of denying the appellant his right of appeal. The learned DR during the course of arguments admits that it is a procedural infirmity, but was of the view that the appeals may not be treated as proper. I am afraid this extreme view towards procedural compliance to the extent of denying the right of appeal can not be endorsed. Reliance in this regard can be made on the following judgments:---

2002 PTD 541 and PLD 175 SC 678.

10. It has been held by the Honourable Supreme Court and the High Court in the cited judgments that the rules of the procedure are meant to advance the cause of administration of justice than to thwart it. These technicalities should never undermine the advancement of purpose for which judicial or law establishes quasi-judicial forums.

On the other side department failed to establish that these technical and procedural lapse are not occasioned on account of wilful intent. In the background technical and procedural requirement could be ignored for the protection of appellant's right. Also substantial procedural violation with extreme serious consequences was not overt. Thus Principle of `Actus Reus' is not conspicuous in appellant's conduct in the instant case. In view of the above referred quintessential position the objection being devoid of merit is overruled.

Now the appeal is disposed of on merit in the following manner.

11. The learned counsel for the appellant has vehemently argued that the learned Assistant Commissioner as well as the learned CIT (A) Sukker. Both erred in law and on facts by holding that the appellant is liable under section 52A of the Income Tax Ordinance, 1979 without distinguishing the nature of receipts from the Red Crescent Society to the appellant during the above mentioned periods. The learned counsel during the course of arguments submitted the written arguments and also filed a duly sworn affidavit of the appellant to support the facts of the case. It was argued that if, the learned Assistant Commissioner or the learned CIT(A) Sukkur, could have cared to examine and verify the facts of the this case either from the appellant/recipient or the Red Crescent Society/payer a well as about the nature of the amount received by the appellant, the controversy could have been resolved at initial stage. It was argued that on denial by the appellant for being liable to tax under section 52-A it was the duty of the Assessing Officer to examine and verify the nature of receipts which according to appellant was in fact the reimbursement of the actual cost of the project and does not, fall within the mischief of section 50(4). The provision visualizes three types of payments i.e. on account of supply of goods, or for services rendered to, or the execution of the contract. It was stated that the amount is actually invested by the appellant who is office-bearer of Red Crescent Society, Sukkur, towards the construction of ICU, CCU and Kidney Center, without charging any profits, labour or service charges. The sum was actually reimbursed from time to time by Red Crescent Society, purely for charity and therefore question of withholding any tax by the payer never arose. In order to substantiate this aspect of the matter, the counsel for the Assessee has also placed on record a letter issued from the Red Crescent Society, whereby the Society has verified the contention of the appellant. Contents of the said letters are reproduced hereunder for the sake of brevity:-

To whom it may concern

This is to certify that during the financial years 1997-98 to 1999-2000 an amount of Rs.30,21,000 (Rupees Thirty Lac Twenty one thousand) was reimbursed from time to time to Messrs Naqvi Builders for the construction ICU CCU and Kidney Centre at Khairpur.

The construction of project did not involve any commercial element as proprietor Messrs Naqvi Builder i.e. Syed Muhammad Hashim Naqvi being the Patron of Red Crescent Society, Khairpur, undertook to complete the project for Charitable purpose without charging any profit, labour/Service Charges etc.

(Sd.)

Secretary

12. The learned counsel for the appellant further argued that in view of the specific claim of the appellant/recipient, and due verification by the Red Crescent Society/payer, there remains no ambiguity about the nature of the amount received by the appellant during the above referred period.

Learned counsel urged that following issues arising from the order of the Assessing Officer require consideration:---

(a) Whether the amounts received by the appellant from the Red Crescent during the financial period under consideration were subjected to provisions of section 50 (4) read with section 80-C of the Income Tax Ordinance, 1979?

(b) Whether orders of the two officers below holding the appellant to be assessee in default for not making payment of tax allegedly liable to be deducted and paid under section 50(4) read with section 52 of the Income Tax Ordinance, 1979 by the Payer Red Crescent, are justified without disputing the claim of the assessee regarding the nature of the amount received (reimbursement of the actual cost of the project) or verifying the same from the payer i.e. Red Crescent Society?

(c) Whether the amount which was neither on account of supply of goods, or for services rendered to, or the execution of the contract, will attract the provisions of section 50(4) of the Income Tax Ordinance, 1979?

(d) Without prejudice to herein above, whether the provisions of section 86, relating to default of the payer i.e. section 52, to be attracted in the case of recipient?

(e) Whether the Additional Tax under section 86 can be imposed without issuing any show-cause notice to the assessees?

(f) Whether the provisions of section 52A having been introduced by Finance Act, 1999 can be invoked for the period of its insertion into statue book, particularly in the absence of any intention of the legislature declaring the said Section to apply retrospectively?

The learned Counsel further explained his view point as under:---

(g) The appellant having stated the facts in his letter dated 25-6-2002 about the nature of amount received by Red Crescent Society, and having reiterated the facts in detail on oath through duly sworn affidavit in terms of Rule 13 of the ITAT Rules, makes it clear that the said amount cannot in any manner be termed as payments covered under section 50 (4) of the Income Tax Ordinance, 1979.

(b) & (c) The appellant, after having submitted the letter dated 25th June, 2002, was never confronted by the Assessing Officer disputing the claim of the appellant. Also the learned CIT(A) did not require the assessee to provide any evidence to prove his claim about the nature of receipts. The duly sworn Affidavit, having placed on record the letter dated: 5th January, 2006 from the Red Crescent Society, Sukkur/Payer i.e. Red Crescent Society verifying the correctness of the claim of the assessee about the amounts received during the years under consideration satisfactorily discharges the onus about the nature of receipts. Thus whereas the misconceived assertion of the officer below stands dislodged under the circumstances of the case. The provisions of section 52 A are therefore not attracted in the facts and circumstances of the case, the orders are therefore liable to be quashed for being without jurisdiction.

(d) A bare perusal of the provisions of section 86 strictly relate to the default committed by the payer and do not visualize any default of recipient. Thus addition under section 86 being unwarranted to the facts of this case, is liable to be cancelled.

(e) Perusal of the order depicts that the Assessing Officer never issued any show cause before creating a huge demand under section 86. The said action violates the provisions of law and principles of natural justice, hence cannot be sustained.

The learned Counsel has relied on the following case-laws to support his argument on the issue:---

(i) 1970 SCMR 226, (ii) 2001 PTD 2906, (iii) 2004 PTD 1499 (HC Kar) rel. 1454 A,B and (iv), 2004 PTD 1179 (SC).

Additional Tax. without providing an opportunity or without show-cause notice can not he imposed.

(f) The provisions of section 52A were introduced by Finance Act, 1999, holding the recipient as liable to pay the tax in case of default of the payer for the first time, in the absence of any specific declaration by the legislature regarding its application retrospectively, cannot be applied retroactively as wrongly done in this case. The treatment is therefore contrary to principles of Interpretation of Taxing Statutes and the Judicial pronouncements of our Superior Courts. The learned Counsel for the appellant has relied on the following case-law to support his arguments on the issue:---

(i) 1985 PTD 529 rel. 133 & 134, (ii) 2004 PTD 921 rel. 941 Z, AA. BB (iii) (1988) 75 Tax 71 rel. 73 (iv) 1988 SCMR 715 rel. 721

According to learned Counsel for the appellant, in above referred case-law, following principles of interpretation of taxing statutes have been confirmed by the Superior Courts:---

It is fundamental rule of law that no statute shall be construed to have retrospective operation unless such a construction appears very clear in terms of Act.

Where substantive provisions of law have been enlarged or extended creating new liabilities they shall not have retrospective effect.

Retrospective legislation is always looked upon with disfavour a general rule, and properly so because of its tendency to be unjust and oppressive.

13. The learned Counsel for the appellant vehemently argued that in view of the facts, statutory provisions of law and on perusal of the case law referred and relied upon, it is clear that orders passed by the authorities below holding the appellant liable to an action under section 52A and addition under section 86 of the Income Tax Ordinance, 1979 are illegal, without jurisdiction, therefore are to be cancelled.

14. In rebuttal the learned DR supported the treatment given by the authorities below to be in accordance with law. It was argued that for the purpose of the section 52A it is immaterial to examine the nature of payments and according to him on every payment deduction of tax is required to be made. It was argued that for invoking section 86 there is no need of issuing any show cause as the same is not provided in law. He exhorted that provisions of section 86 can also be invoked in case of default of recipient. Learned D.R asserted that the orders passed by the authorities below are legal and be maintained.

15. I have heard both the learned counsel and studied the assessment and Appellate order. Also relevant provisions of law as well as the case-law referred and relied upon by the appellant during the course of arguments are discerned. On examination of the documentation it transpires that except one letter dated 13-6-2002 issued by the Assistant Commissioner Khairpur Circle, there is nothing on record either before the Assessing Officer or before the Commissioner of Income Tax (A) Sukkur, to show that proper inquiry was made to verify the nature of receipt or the assessee/appellant was ever specifically confronted to explain the nature of the amounts received from Red Crescent Society during financial year 1997-98 to 1999-2000 corresponding to Assessment years 1998-99, 1999-2000 and 2000-2001 respectively. It appears that both the authorities below, proceeded to hold the appellant as assessee in default under the provisions of section 52 A, under a notion that provisions of section 52 A are attracted on all payments respective of their nature or type. The learned DR has also made his submissions on the same analogy. In order to appreciate the provisions section 50(4) relating to payments. The relevant text is reproduced as under.

Section 50 (4)(a) any person responsible for making any payment in full or in part (including a payment by way of advance) to any person (being resident,) (hereinafter referred to respectively as "Payer" and "recipient"), on account of the supply of goods or for services rendered to or the execution of a contract with the Government??shall (where the total value, in any financial year, of goods supplied or contracts executed exceeds fifty thousand rupees, or for service rendered exceeds ten thousand rupees.) deduct advance tax, at the time of making

such payment,????(Emphasis provided (sic)).

16. On, simple reading of the provisions of section 50(4) it is perspicuous that the payments made by the payer have been qualified to the extent of covering the payments on account of supply of goods, or for services rendered to or the execution of a contract only. Reimbursement of the amount by the payer to the recipient cannot be parturitioned as payment envisioned in section 50(4) as presumed in the instant case by the authorities below. Once it is established that the amount received by the appellant was not on account of supply of good.

Or for services rendered or the execution of contract, the provisions of section 52 A read with section 50 (4) of the Income Tax Ordinance, 1979 can not be trotted out.

17. It has been held in various judgments by Superior Courts that Income Tax proceedings are quasi-judicial in nature and principles of natural justice are attracted, particularly relating to opportunity of being heard etc. It appears that the assessing officer, took prepossessed scope of the provisions of section 50(4) read with section 52A and proceeded to invoke the provisions of section 52A, ignoring the contention of the assessee/ appellant on facts as well as on law. The learned CIT (A) also digressed in facts and law by concurring with the view of the Assessing Officer.

18. Even otherwise in broader spectrum, analogy derived from latest legal principle `Fraus Legis' developed by court of justice of European Communities, prevents the endorsement of departmental action. This could mean an abuse of a statuary provision by circumventing assessee's factual position or running contrary to spirit envisaged in law.

19. I am of the view that orders passed under sectlo,i 52-A are erroneous in facts and law, the same are liable to be vacated/cancelled.

20. As regards validity of orders passed under section 86, in view of my finding relating to legality of action under section 52, the said addition is also not sustainable. However I am inclined to agree with contention of the learned Counsel for the appellant that provisions of section 86 are otherwise not attracted in case of default by the recipient and can be invoked in case of default by the payer only. The orders under section 86 of the Income Tax Ordinance, 1979 in this case are without jurisdiction. Thus the order of CIT(A) is vacated on this issue and order under section 86 of Income Tax Ordinance, 1979, are hereby cancelled. The orders under section 86 are otherwise not sustainable in law as these orders were passed in a mechanical manner, without issuing I any show cause or confronting the assessee in this behalf. The case referred to and relied upon by the learned Counsel for the appellant is pellucid on this legal proposition.

21. The learned Counsel for the appellant has also challenged the application of section 52A on legal plane as well. Where by according to the learned Counsel the provisions of section 52A having been introduced by Finance. Act 1999 for the first time, holding the recipient as assessee in default thus creating a new burden upon the recipient which was not available prior to this insertion of this entirely new provision of law. Thus this provision can only be applied prospectively effective from the date insertion relating to financial year 1999-2000 corresponding to assessment year 2000-2001. Learned Counsel for the appellant placed reliance on number of citation wherein it has been held that no statute shall be construed to have retrospective operation unless such construction appears very clear in terms of act. I am convinced to agree with legal proposition highlighted on the strength of the case-law relied upon by the learned Counsel for the appellant. Prior to insertion of section 52-A in the statute book, only payer was treated as assessee in default on failing to deduct advance tax in terms of section 52 of the Income Tax Ordinance, 1979 and there was no default of the recipient was visualized on the part of the recipient. By introducing section 52A in the statute book the recipient was made liable to pay tax in view of failure on part of the payer to withhold tax at the time of making payment of the recipient. In Maxwell on the Interpretation of Statutes, 12th Edn., the statement of law in this regard is stated thus:---

"Perhaps no rule of construction is more firmly established than thus that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. The rule has, in fact, two aspects, for it, "involves another and -subordinate rule, to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary."

In Francis Bennion's Statutory Interpretation. 2nd Edn., the statement of law is stated as follows:---

"The essential idea of legal system is that current law should govern current activities. Elsewhere in this work a particular Act is likened to a floodlight switched on or off, and the general body of law to the circumambient air. Clumsy though these images are, they show the inappropriateness of retrospective laws. If we do something today, we feel that the law applying to it should be the law in force today, not tomorrow's backward adjustment of it. Such, we believe, is the nature of law. Dislike of ex-post facto law is enshrined in the United States Constitution and in the Constitution of many American States. Which forbid it. The true principle is that lex prospicit non respicit (Law looks forward not back). As Willes, J. said retrospective legislation is `contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transaction carried on upon the faith of the then existing law."

22. It is crystal clear that the Statutes dealing with substantive rights are prima facie/generally prospective unless it is expressly or by necessary implications made to have retrospective operation. But the rule in general is applicable where the object of the statute is to affect the vested rights or impose new burdens or to impair existing obligations.

23. In the light of the above compendium and the principles laid down therein that the new Act / Rule affecting existing rights or creating new obligations, is presumed to be prospective only. A person cannot be saddled with additional liability or burden in retrospection for no default on his part. I hereby held that provisions ,of section 52A will apply to this cases involving default during the financial year 1999-2000 and can be invoked for " the assessment year 2000-2001 onwards. However as regard to assessment year 2001-2002. likewise earlier years, appellant's plea regarding `reimbursed expenses' could not be controverted as such no cause of action could be buttressed as far as applicability of section 52-A is concerned. Rather action taken by the Assessing Officer, lacks legal mandate in such relevance. Hence doctrine `exd turpi causa no oritur' is attracted. Thus as discussed earlier taxability of reimbursed amount is `Non constat' in assessment year 2001-2002 as well.

24. The instant appeals are allowed in the manner as indicated above.

C . M. A . /45/Tax(Trib .)???????????????????????????????????????????????????????????????????? Appeals allowed.