I.T.A. No.3294/LB of 2005, decided on 31st August, 2006. VS I.T.A. No.3294/LB of 2005, decided on 31st August, 2006.
2007 P T D (Trib.) 741
[Income-tax Appellate Tribunal of Pakistan]
Before Jawaid Masood Tahir Bhatti, Judicial Member
I.T.A. No.3294/LB of 2005, decided on 31/08/2006.
Income Tax Ordinance (XXXI of 1979)---
----S. 62---Assessment on production of accounts, evidence etc.---Deceased assessee---Assessment was framed in the name of deceased assessee without bringing on record legal heirs of the assessee in accordance with law in spite of sending notice in the name of another person---Validity---Intimation regarding death of the assessee was duly given, which was available on record---Observation by the First Appellate Authority that `ground of appeal was invalid' was made without confirming same from the record---No justification was available for the assessment made on a deceased person without making legal heirs of the assessee (deceased) party to the case in accordance with the provisions of law---Order of First Appellate Authority was vacated and the assessment so made was annulled by the Appellate Tribunal.
Abdul Hameed, ITP for Appellant.
Mrs. Sabiha Mujahid, D.R. for Respondent.
ORDER
JAWAID MASOOD TAHIR BHATTI, (JUDICIAL MEMBER).---Through this appeal, the appellant has objected to the impugned order of the learned CIT(A), dated 1-11-2004 for the assessment year 2002-2003 on the following grounds:
(2) That the Commissioner of Income Tax Appeals decisions of invalid grounds of appeals Nos. 2, 3 and 4 is wrong and against the facts. She would have decided the appeal on merits and facts of the case. Assessment cannot be framed on a dead person.
(3) That the estimate of receipts at Rs.675,000 against declared at Rs.600,000 has wrongly been confirmed. The Assessing Officer failed to bring sufficient material on record.
(4) That the following additions made from P&L A/c have been confirmed. The expenses claimed are reasonable and should have allowed in full. The same should have been enhanced in view of high estimate of receipts.
| Particulars | Claimed | Disallowed |
| Telephone | Rs.21, 250 | Rs.3,187 |
| Conveyance | Rs.18,000 | Rs.6,000 |
| Entertainment | Rs. 15,000 | Rs.5,000 |
| Tyre Track | Rs.74,400 | Rs.5,000 |
| Repair | Rs.75,500 | Rs.10,000 |
| Miscellaneous | Rs.19,990 | Rs.5,000 |
I have heard the learned representatives from both the sides and have also perused the impugned order of the learned CIT(A) and the assessment order.
The learned counsel for the appellant has contended that assessment framed by the Taxation Officer is ab initio, illegal and against the facts of the case, as the assessment order has been passed on 26-6-2003 in the name of Mr. Dilawar, Hussain, who has already expired on 9-9-1998 and intimation in this regard was duly given and available on record of the case. According to the learned counsel, assessment cannot be framed on deceased person. He has also placed before me the death certificate issued from Cardiology Department, Mayo Hospital, Lahore certifying death of Mr. Dilawar Hussain son of Muhammad Din on 9-9-1998 and another death certificate issued from Metropolitan Corporation, Lahore confirming the same. The learned counsel for the appellant has also placed before me the assessment order for the assessment year 2002-2003, which is in the name of Mr. Dilawar Hussain bearing N.T. No. 06-34-Z383277.The learned CIT(A) has also mentioned the name and N.T. No. as referred above, but the IT-30 Form, the name of Mr. Dilawar Hussain has not been mentioned and N.T, No. has been given as 06-34-0220969 and the name of the assessee has been mentioned as Messrs Pak Modern Goods Transport Co. and the figure of total assessed income in the assessment order as well as in IT-30 Form, dated 26-3-2003 are Rs.3,08,987. On behalf of the appellant, the learned counsel has placed before me the notice on a printed form sent by the Taxation Officer to Messrs Pak Modern Goods Transport Co. mentioning N.T. No. as 06-34-Z383277 regarding assessment year, 2002-2003 asking the assessee to appear on 20-12-2002. In another notice, dated 12-12-2002 issued by the Taxation Officer in the name of Mr. Altaf Hussain owner of Messrs Pak Modern Goods Transport Company for the assessment year, 2002-2003 has been sent on the subject "Intimation Regarding Selection of case for Total Audit for the Assessment year 2002-2003". Another notice, dated 26-3-2003 sent by the Taxation Officer to Mr. Dilawar Hussain Prop. Messrs Pak Modern Goods Transport Company has also been placed before me wherein N.T. No. has been mentioned as 06-34-0220969. The learned counsel has also placed before inc the notice sent by the Taxation Officer for the assessment year 1986-87 wherein N.T. No. 1194650 has been mentioned in the name of Messrs Altaf Hussain owner of Messrs Pak Modern Goods Transport Company. In this regard, the order under section 59(1) has also been placed before me. The learned counsel for the appellant has contended that all notices have been sent in the name of Mr. Altaf Hussain, but the assessment has been framed in the name of Mr. Dilawar Hussain, who has already died on 9-9-1998 and the assessment has been made without bringing on record legal heirs of the assessee in accordance with law.
The learned DR is unable to defend the assessment in this case.
I have noted that the learned CIT(A) has not entertained the grounds of appeal before him specifically challenging the assessment framed in the name of Messrs Dilawar Hussain, who has already expired on 9-9-1998 and contending that the intimation in this regard was duly given to the Taxation Officer and is available on record. Likewise, it was specifically pointed out before the learned CIT(A) that as per intimation letter, dated 12-12-2002, the case being N.T. No. 1194650 has been selected for Total Audit, whereas the assessment order indicates N.T. No. as 06-34-Z383277 and on the Demand Notice, the same has been mentioned as 06-34-220969. It was further specifically pointed out before the learned CIT(A) that N.T. Nos. Z383277 has been selected for Total Audit, whereas the N.T. No of the assessee/appellant is 06-34-1194650. Despite these specific grounds raised before the learned CIT(A), he has brushed aside all these grounds with the observation that "Submission of appellant did not carry any weight. So far as the grounds of appeals bearing Nos. 2, 3 and 4 are concerned, since the issues involved were not decided during the course of assessment proceedings, these cannot be entertained at this stage. These grounds of appeal have been considered to be invalid". I have noted that the learned CIT(A) without perusal of record and keeping in view the legal position, has held the grounds of appeal to be invalid, despite the fact that legal grounds can be taken at any stage and in this case, it has been contended by the assessee/appellant that intimation was duly given regarding death of the assessee Mr. Dilawar Hussain, which is available on record, but the observations have been made without confirming the record by the learned CIT(A).
In view of these facts and circumstances of the ease, I find no justification for the assessment made on a deceased person without making legal heirs of the appellant party to the case in accordance with the provisions of law. The impugned order of the learned CIT(A) is, therefore, vacated and the assessment made in this case is annulled.
The appeal filed by the assessee is allowed.
C.M.A./228/Tax (Trib.)Appeal allowed.