Messrs JAVED RUBBER WORKS, through Proprietor VS CENTRAL BOARD OF REVENUE, ISLAMABAD
2005 P T D 338
[Lahore High Court]
Before Nasim Sikandar, J
Messrs JAVED RUBBER WORKS, through Proprietor
Versus
CENTRAL BOARD OF REVENUE, ISLAMABAD and 4 others
Writ Petition No.11847 of 2005, heard on 07/09/2005.
Income Tax Ordinance (XXXI of 1979)---
----S.59---Self-Assessment Scheme---Change in or extension of Scheme after its announcement and filing of returns by the assessee---Scope and Validity---Availing of Self-Assessment Scheme was though optional for the assessee, but such fact would not justify the department for issuance of parameters of denial of Scheme to assessee individually or collectively after filing of returns---After filing of return by the assessee and taking final and decisive step in response to the Scheme notified for the year, department could not make change or extend the Scheme detrimental to the assessee---Principles.
Dr. Ilyas Zafar for Petitioner.
Muhammad Ilyas Khan for Respondents.
Date of hearing: 7th September, 2005.
JUDGMENT
NASIM SIKANDAR, J.---In this Constitutional petition following prayer has been made:---
"In the light of above submissions, it is prayed that the guidelines issued by respondent No.1, the show-cause notice issued by respondent No.2 vide No.104/2002-2003, dated 27-12-2002 and subsequent order, dated 31-1-2003 setting apart the case of the petitioner for total audit, may very graciously be held illegal, unjustified, unwarranted and uncalled for on the basis of judgment already made by the Hon'ble Court vide 2004 PTD 1. "
2. It is the case of the petitioner that self assessment scheme for the year 2002-2003 was announced by the Revenue on 15-6-2002 while the return in this case filed on 30-9-2002. However, guidelines for selection of cases out of the scheme were issued by the Revenue on 17-12-2002.
3. In this situation, learned counsel submits and I will agree that the principles evolved with respect to the scheme for the assessment year 2002-2003 in Writ Petition No.9979 of 2003, dated 24-9-2003 are equally applicable to the said assessment scheme in hand. Para. 23 of that order reads as under:---
"23. Although I am not in agreement with the arguments of the petitioners that a scheme once issued could neither be amended nor extended as an exercise of one time delegated power, yet I am in agreement that such change or extension cannot be detrimental to the assessees after returns had been filed and a final and decisive step had been taken by the assessees in response to the scheme notified for the year. It is correct that availing the scheme is optional for an assessee and that every assessee of the Income Tax Department can file a return under section 55 to be treated and assessed under normal law. However, that fact alone does not justify the issuance of parameters of denial of scheme to the assessees individually or collectively after filing of the returns. A glance at the guidelines dated 17-12-2002 makes it clear that para. 9(a)(ii) of the scheme has completely been substituted. The Revenue is totally silent as to why these guidelines could not be issued as part of para. 9, simultaneously with the scheme or at least before the filing of the returns. The shroud of uncertainty appears to have deliberately been allowed to remain covering guidelines only in order to have unchecked discretion to select a case f for total audit. The withholding of the parameters or guidelines of selection of cases out of the scheme may not necessarily be mala fide. However, withholding of, the guidelines till the tiling of these returns does not appear bona fide either. The State does not cheat the citizens. The Revenue, therefore, is not correct in claiming that the purpose of these guidelines was to provide for impartiality and transparency."
4. For the above and various after reasons a number of petitions by the assessees placed in similar condition were allowed on the ground that their cases were selected for process under normal law on the basis of guidelines issued after filing of the returns. Since the facts in hand are also identical, I will allow this petition and hold that the selection of the case of the assessee for total audit on the basis of the guidelines was improper.
5. It shall accordingly be set at naught. Also any superstructure raised on the basis of that selection including the framing of an assessment shall stand set aside.
M.B.A./J-91/LOrder accordingly.