COMMISSIONER OF INCOME TAX/ WEALTH TAX, FAISALABAD, ZONE VS Messrs SHAHZAD AND COMPANY, FAISALABAD, 2006 PTD-LAHORE-HIGH-COURT-LAHORE 2436 (2006)

(a) Income-tax---

----Assessment order, finality of---Scope---Such order passed by Income Tax Officer being an order of original authority would not be final as same could be challenged in appeal or revision---Finding of last forum would be binding and conclusive---Word "pending" would include pendency of appeal or revision as provided by the statute as a matter of right.

Central Board of Revenue and others v. Chand Motors 1993 SCMR 39 rel.

(b) Special Procedure for Ginning Industry Rules, 1996---

----R.8---S.R.O. 1(4) ST 14/90, dated 22-5-1991---Qanun-e-Shahadat (10 of 1984), Art. 114---Tax return by member of Cotton Ginning Association, submissions of---Issuance of S.R.O. 1(4)ST 14/90 on basis of agreement between C.B.R. and association providing formula for finalization of such return---Declaration of income by assessee on basis of certain rates---Addition made by Assessing Officer on basis of rates given by assessee---Validity---Income once declared by assessee on basis of certain rates could not be altered---Assessee was estopped by his conduct---Benefit of such S.R.O., was not extended to assessee in circumstances.

Commissioner of Income Tax v. Muslim Commercial Bank Ltd. 2002 PTD 720; Abid Hussain v. Commissioner of Income Tax 1995 PTD 262 and Home Service Syndicate v. Commissioner of Income Tax 2003 PTD 2109 ref.

(c) Words and phrases---

----"Pending"---Connotation---Word "pending" not confined to "physical pending", but includes pendency of appeal or revision provided by a statute as a matter of right.

Central Board of Revenue and others v. Chand Motors 1993 SCMR 39 fol.

Lateef Ahmad Qureshi for Petitioner.

Muhammad Ilyas Khan for Respondent.

ORDER

Petitioner, a registered firm, derives income from oil mill. The declared version of the petitioner for the assessment year 1989-90 was rejected and assessment of Rs.3,44,592 was made against declared income of Rs.1,13,183. The addition was challenged but found no favour in appeal before CIT as well as learned Income Tax Appellate Tribunal. Hence this reference.

2. The assessee claimed benefits of C. B. R. Circular No. S.R.O. 1(4)ST 14/90, dated 22-5-1991. The S.R.O. was issued pursuant to agreement between the cotton ginners association of Pakistan and C.B.R. where a particular formula for finalization of return was adopted for the finalization of the return filed by the members of the association. Petitioner's income on the basis of the said S.R.O. comes to Rs.67,794 as against declared income at Rs.1,13,183.

3. The following questions of law said to have arisen out of the order of the Tribunal, are subject-matter of this reference:-

(i) "Whether on facts and in the circumstances of the case, the Tribunal was right in law in not ordering acceptance of declared income which was in excess of the standard laid down by the C.B.R. and was being applied in comparable cases"?

(ii) "Whether on the facts and in the circumstances of the case the Tribunal was obliged in law to apply on the case under appeal the fair standard of expected income fixed by the C.B.R. for comparable cases"?

4. Learned counsel for the petitioner in support of above referred questions has submitted that Central Board of Revenue is the apex authority in the hierarchy of Federal, Tax Administration and empowered not only to watch but control and guide all tax authorities under it in the execution of Income Tax Ordinance. Its instructions and directions are binding on all officers and persons in the execution of Ordinance, therefore, Income Tax Authorities were bound to give and extend benefits to the petitioner under S.R.O. No. 1(4)/ST 14/90, dated 22-5-1991. Learned counsel in support of his contention has referred to the case of Commissioner of Income Tax v. Muslim Commercial Bank Ltd. (2002 PTD 720). Learned counsel then referred to the cases of Abid Hussain v. Commissioner of Income Tax (1995 PTD 262) and Home Service Syndicate v. Commissioner of Income Tax (2003 PTD 2109) to contend that concession/benefit of a circular can be extended to assessee even during the pendency of his appeal as the assessment pasted by Income Tax Officer is not final unless it has been determined finally after going through all the forums and in such cases the finding of the last forum shall be binding and conclusive.

5. Learned counsel for the Revenue, on the other hand, stood behind the impugned order and while supporting the impugned order and while supporting the impugned decision he has submitted that even on the basis of formula adopted by the ginning association, according to which the assessee is allowed to revise his returns on the aforesaid basis, the assessment in the instant case has already been finalized and assessee at this stage could not revise its return. The circular was thus not applicable to the petitioner.

6. Heard learned counsel for the parties and perused the record.

7. There is no cavil with the proposition that the assessment order passed by Income Tax Officer is an order of the original authority. Such order is not final as it can be challenged in appeal or revision as the case may be and would be final only when it goes through all the forums and the finding of the last forum shall he binding and conclusive. The august, Supreme Court has enunciated this principle in the case of Central Board of Revenue and others v. Chand Motors 1993 SCMR 39. Word pending in the instant case cannot be confined to the assessment order so as to restrict its meaning to "Physically pending" or to its dictionary meaning. Pending includes the pendency of appeal or revision which is provided by the statute as a matter of right. The case of the assessee is on different premises. The addition was made in the instant case on the basis of the rates given by the assessee. The assessee has once declared his income on the basis of certain "rates given by assessee" it cannot be altered. The assessee is estopped by his conduct, therefore, the benefits of S.R.O, 1(4)ST 14/90, dated 22-5-1991 was rightly not extended to the assessee. We do not see any justification to answer the proposed question in favour of the assessee.

S.A.K./C-28/LAnswer in negative.