COMMISSIONER OF INCOME-TAX AND WEALTH TAX GUJRANWALA ZONE, GUJRANWALA VS Mst. FAHMIDA AKHTAR, 2006 PTD-LAHORE-HIGH-COURT-LAHORE 37 (2005)

Wealth Tax Act (XV of 1963)---

----Ss. 16(2) & 27---Appeal to High Court---Failure to issue notice under S. 16(2) of the Wealth Tax Act, 1963---Appellate Tribunal had particularly noted and found that no documentary evidence was produced by the department to prove service of requisite notice on the assessee---First Appellate Authority had categorically recorded in its order that upon perusal of the record it was noticed that notice under S. 16(2) of the Wealth Tax Act, 1963 was not issued by the Department to the assessee---Record was withheld by the Department from the Tribunal fearing an adverse order which in any case was made by the Tribunal against the Revenue---Department had failed to prove service of notice on the assessee and had not questioned observations of the Tribunal noting the non-production of record and evidence---Tribunal had decided said question of fact against the Revenue in absence of proof and in the perspective of First Appellate Authority's order made upon perusal of the record---Appeal of Revenue being without merit was dismissed by the High Court.

Muhammad Ilyas Khan for Petitioner.

ORDER

In this Wealth Tax Appeal the Department seeks expression of opinion from this Court on the following question:

"Whether in the facts and circumstances of the case the learned ITAT was justified in holding that assessment finalized under section 16(5) is illegal without issuance of notice under section 16(2) of the Wealth Tax Act, 1963 when no return was filed by the assessee and assessment was finalized on the basis of notice under section 16(4). "

2. In the context of the above question, along with the learned counsel for the Revenue, we examined the impugned order dated 7-9-2002 passed by the learned Income Tax Appellate Tribunal, Lahore. It was adjudged by the learned Tribunal that:

"4. In first appeal it was pleaded that since no notice under section 16(2) was issued assessment finalized under section 16(5) was illegal. C.I.T.(A) accepted the above plea after verifying from the records that notice under section 16(2) was not issued. Besides that contention the assessee was supported by ITAT judgment vide 812 to 817/LB of 2000 dated 26-7-2000. The impugned orders were declared illegal and annulled. "

"5. D.R. in the absence of records has not been able to controvert the findings of the C.I.T.(A) that no notice under section 16(2) was ever issued. Even more to that service of notices as already observed is not ascertainable due to non-submission of assessment records."

3. The learned Tribunal particularly noted and held in the above order that no documentary evidence was produced by the department to prove service of the requisite notices on the respondent. Furthermore the First Appellate Authority had categorically recorded in its order that upon perusal of the record it was found that notice under section 16(2) of the Wealth Tax Act, 1963 was not issued by the department to the assessee. The record was thus withheld by the appellant department from the Tribunal fearing an adverse order which in any case was made by the learned Tribunal against the Revenue. The department failed to prove service of notice on the assessee and has not questioned observations of the Tribunal noting non-production of record and evidence by the appellant department. As such the question as to whether the notice under section 16(2) was issued and served on the assessee or not is a question of evidence and record. The learned Tribunal decided this question of fact against the Revenue in absence of proof and in the perspective of the First Appellate Authority's order made upon the perusal of the record. The second part of the question was not urged, argued, raised by the Revenue and was also not ruled upon by the learned Tribunal. In these circumstances, this appeal being without merit is declined.

M.B.A./C-125/L????????????????????????????????????????????????????????????????????? Appeal dismissed.