COMMISSIONER OF INCOME TAX/WEALTH TAX, COYS ZONE-II, LAHORE VS Messrs CRESCENT COTTON AND ALLIED FACTORIES (PVT.) LTD., LAHORE, 2006 PTD-LAHORE-HIGH-COURT-LAHORE 629 (2005)

Wealth Tax Act (XV of 1963)---

----Ss.14, 16 (2) (5) & 17---Assessment of previous years---Non-issuance of notice under S.16 (2) of Wealth Tax Act, 1963---Annulling of assessment order---Assessee did not file its wealth tax return for some previous years, for which authorities issued notice under Ss. 14 and 17 of Wealth Tax Act, 1963---Assessee in response to the notice, filed its wealth tax return for the previous years and Assessing Officer finalized assessment under S.16 (5) of Wealth Tax Act, 1963---Income Tax Appellate Tribunal allowed the appeal filed by assessee and annulled assessment order on the ground that statutory notice under S.16 (2) of Wealth Tax Act, 1963, was not issued to the assessee---Plea raised by the Authorities was that when notice under Ss. 14 & 17 of Wealth Tax Act, 1963, had been given, then there was no requirement of notice under S.16 (2) of Wealth Tax Act, 1963---Validity---Notices under Ss.14 and 17 of Wealth Tax Act, 1963 and notice under S.16(2) Wealth Tax Act, 1963 were entirely of two different categories---Notice under the former provision was merely to compel and procure returns from assessee, while notice in the latter category was to call upon the assessee to produce evidence in support of its return so as to proceed with the assessment---Issuance of notice under S.14 or 17 of Wealth Tax Act, 1963, could not be equated with the statutory requirement of S.16 (2) of Wealth Tax Act, 1963---On account of failure to issue notice under S.16 (2) of Wealth Tax Act, 1963, assessment made by Assessing Officer was ab initio void and coram non judice---Such assessment was simply non-existent and Income Tax Appellate Tribunal had rightly annulled the same---High Court declined to interfere in the order passed by Income Tax Appellate Tribunal---Appeal was dismissed in circumstances.

M. Jamil Khan, Lahore v. Commissioner of Wealth Tax (1995) 71 Tax 265 and Collector, Sahiwal and 2 others v. Muhammad Akhtar 1971 SCMR 681 fol.

Shahid Jamil Khan for Appellant.

Khawaja Muhammad Iqbal for Respondent.

Date of hearing: 8th December, 2005.

JUDGMENT

MUHAMMAD KHALID ALVI, J.---With the concurrence of the learned counsel for the parties, these appeals are treated as "Pacca Case".

2. Through this single judgment we propose to dispose of the following cases, which are between the same parties, for different assessment years but having common question of law and facts.

(I) W.T.A. No. 148 of 2001.

(II) W.T.A. No. 149 of 2001.

(III) W.T.A. No. 150 of 2001.

(IV) W.T.A. No. 151 of 2001.

(V) W.T.A. No. 152 of 2001.

3. The respondent a private limited company having failed to file its Wealth Tax Returns for the years 1992-93 to 1997-98 was served with notices under section 17 of the Wealth Tax Act, 1963 for the years 1992-93 to 1996-97 and notice under section 14(2) for the assessment year 1997-98. In response to these notices Wealth Tax Returns were filed by the respondent declaring net wealth as "Nil" for all the years. On receipt of these returns the Assessing Officer proceeded to finalize the assessments under section 16(5) of the Wealth Tax Act, 1963 on the basis of the material available with him. Feeling dissatisfied the respondent preferred an appeal before the Commissioner of Income Tax/Wealth Tax (Appeals). The Commissioner of Income Tax/Wealth Tax (Appeals) vide order dated 14-12-1998 allowed the appeal, holding that no notice under section 16(2) was issued; therefore, set aside the assessments and remanded the cases for de novo action. It was further directed that fresh notices under section 16(2) be issued. Still dissatisfied the respondent challenged the said order in second appeal before the Income Tax Appellate Tribunal. The learned Tribunal vide order dated 24-4-2001 allowed the appeals and "Annulled" the assessments for all the years. This order is being assailed through the instant appeals.

4. The questions of law being raised are incorporated in the memorandum of appeals as follows:---

"(i) Whether on the facts and in the circumstances of the case the Income Tax Appellate Tribunal was justified in annulling the assessment order on the ground that notice under section 16(2) was not issued. Particularly when the Return was filed under section 17 of the Wealth Tax Act?"

(ii) "Whether on the facts and in the circumstances of the cases the Income Tax Appellate Tribunal was justified to annul the assessment on technical ground?"

(iii) "Whether in the facts and in the circumstances of the case the Income Tax Appellate Tribunal should have set aside the assessment order for de novo decision instead of annulment?"

5. Learned counsel for the appellant contends that once a notice under section 17 is given to an assessee the mandatory requirement of issuance of notice is complied with. According to him all the facts with which the assessee is to be confronted, already stand disclosed to him under the said notice, therefore, a subsequent notice under section 16(2) is merely a procedural lapse if it is not issued. He further argued that non-issuance of a notice under section 16(2) is curable by issuance of a fresh notice, therefore, the order of Commissioner of Income Tax/ Wealth Tax (Appeals) was justified by merely setting aside the assessments with a directive to issue a fresh notice so as to start process of assessment de novo.

6. On the other hand, learned counsel for the respondents with reference to a judgment of this Court reported as (1995) 71 Tax 265 M. Jamil Khan, Lahore v. Commissioner of Wealth Tax contends that issuance of notice under section 16(2) is a statutory requirement. Failure to issue such a notice makes all the subsequent proceedings coram non judice. He has also relied upon 1971 SCMR 681 Collector, Sahiwal and 2 others v. Muhammad Akhtar to contend that all acts taken without complying with the statutory requirements of a notice are void ab initio.

7. We have considered the arguments of the learned counsel for the parties.

8. Under section 14 of the Wealth Tax Act, 1963 every person having taxable net wealth is required to file a return. However, under subsection (2) of section 14 if the Deputy Commissioner is of the opinion that any person has not filed a return having taxable net wealth, a notice can be issued to him. Under section 17 if the Deputy Commissioner is of the view that some wealth has escaped assessment in an assessment year on account of some omissions or failure on the part of the assessee, he shall issue a notice so as to assess or re-assess his net wealth.

9. After issuance of the above referred notices then comes the stage of assessment under section 16. If as a result of returns filed in response to the notice under section 14 or section 17 the returns are acceptable to the Deputy Commissioner. He may proceed to finalize the same under subsection (1) of ' section 16. If the Deputy Commissioner is not satisfied with the returns then he is required to serve a notice under subsection (2) of section 16 to the assessee to produce or cause to be produced any evidence on which the assessee relies in support of his returns.

10. Notices under sections 14 and 17 on the one hand and notice under section 16(2) on the other hand are of entirely two different categories. The notice under the former provision are merely to compel and procure the returns from the assessee, while notice in the latter category is to call upon the assessee to produce evidence in support of his return so as to proceed with the assessment. Therefore, issuance of notice under section 14 or 17 cannot be equated with the statutory requirement' of subsection (2) of section 16. It is thus evident that on account of failure to issue notice under subsection (2) of section 16 and assessment made by the Assessing Officer without such notice was ab initio void and coram non judice.

11. Nutshell of the above discussion is that respectfully following the law cited by the learned counsel for the respondent, since the assessment made by the Assessing Officer was coram non judice, it will be simply deemed to be non-existent; therefore, the use of phrase of its annulment by the learned Tribunal, by no means can be said to be illegal. Therefore, questions raised in these appeals are answered in the negative. Resultantly, the appeals fail and are accordingly dismissed.

M.H./C-5/LAppeals dismissed.