VS, 2008 PTD-INCOME-TAX-APPELLATE-TRIBUNAL-PAKISTAN 1549 (2008)

Income Tax Ordinance (XLIX of 2001)---

----Ss. 122(1)(5) & 111(4)(b)---Amendment of assessment---Tax year, 2003---Issuance of show-cause notice under S.122(1) of the Income Tax Ordinance, 2001 without mentioning of its subsections 122(5) or 122(5)(a)---Validity---Assessing Officer had nowhere mentioned as to which assessment order was being amended and the additions had been made on the basis of assessment for the years, 2001-2002 and 2002-2003, without any reference to the assessment order regarding tax year, 2003---Order had been passed by the Taxation Officer under S.122(1) of the Income Tax Ordinance, 2001 and notice had been sent to the assessee as mentioned in the amended order under S.122(9) of the Income Tax Ordinance, 2001 and nowhere in that order subsections (5) or (5)(a) of S.122 of the Income Tax Ordinance, 2001 had been mentioned---First Appellate Authority had upheld the amended order and had not considered the fact that Taxation Officer had not mentioned in the order as to which of the orders was going to be amended---Order of First Appellate Authority was vacated and the amended order passed by the Taxation Officer being illegal was annulled.

2002 PTD 2160; 2006 PTD 673; 2006 PTD 2729 and 2007, PTD 2319 rel.

Shoaib Ahmad Sheikh for Appellant.

Sabiha Mujahid, D.R. for Respondent.

ORDER

JAWAID MASOOD TAHIR BHATTI (JUDICIAL MEMBER).--Through this appeal, the appellant/assessee has objected the impugned order of the learned CIT(A),dated 22-10-2007 for the Tax year, 2003 on the following grounds:--

(1) That the amended order passed under section 122(1) of the Income Tax Ordinance, 2001 by the Taxation Officer is against the facts of the case and bad in law from each and every aspect.

(2) That in the absence of speaking order the amended order is absolutely without jurisdiction and unlawful also. The reliance may be made on the judgment (sic).

(3) That in the light of the land-marked judgment of the apex Supreme Court regarding the Civil Petitions 1032 to 1035, 1048 to 1050, 1093 to 1095, 1113 to 1118-I of 2005 CIT Zone-C, Lahore and others v. Kashmir Edible Oils and others (2006 SCMR 109) as well as C.B.R's. own clarification on the said subject, closed assessments under the enactment repealed Income Tax Ordinance could not be amended under section 122(1) of the Income Tax Ordinance, 2001.

(4) That as no mandatory show-cause notice under section 122(1) without mentioning of its subsections 122(5) or 122(5)(a) has been issued accordingly, thus the said illegal action of the Assessing Officer as well as its confirmation by the Commissioner of Income Tax (Appeals) in the light of the judgments of the apex Court 2002 PTD 2160, 2006 PTD 673, 2006 PTD 2729 and 2007 PTD 2319, being without jurisdiction should be ab initio, null and void.

(5) That, as the both show-cause notices under section 122(9) of the Income Tax Ordinance, 2001 issued by Taxation Officer vide, dated 14-6-2005 and 26-7-2005, thus the discovery falls in the ambit of Tax year, 2005, hence in the light of under section 111(2) of the Income Tax Ordinance, 2001, the amendment should be finalized in the tax year, 2004 but not in 2003.

(6) That as the shop No.1 value of Rs.365000 was disposed of on 15-4-1999 through an agreement to sell, thus in the light of section 11(4)(b) of the Income Tax Ordinance, 2001, the adverse action of the Taxation Officer and its confirmation by CIT(Appeals) as well in this regard is time-barred. The registration of the said agreement to sell is not mandatory to be registered with the Sub-Registrar, hence this action of the Taxation Officer and confirmation of CIT(Appeals) is also without jurisdiction and legal consequences.

(7) That as the gift for value of Rs.4,00,000 received by the appellant vide, dated 144-1998, thus the said is also hit by limitation in the light of under section 121181 of repealed Income Tax Ordinance, 1979 and 36(3) of Income Tax Ordinance, 2001. Not any documentary registration is required under the law. Hence the adverse action in this regard by the Taxation Officer as well as its confirmation by the CIT(Appeals) is without jurisdiction and unlawful.

I have heard the learned representatives from both the sides and have also perused the impugned order of the learned CIT(A); the amendment order passed under section 122(1) of the Income Tax Ordinance, 2001.

While perusal of the order passed by the Taxation Officer under section 122(1) of the Income Tax Ordinance, 2001, I have found that he has nowhere mentioned that which assessment order is being amended and the additions have been made on the basis of assessment for the years, 2001-2002 and 2002-2003, without any reference to the assessment order regarding tax year, 2003. I have further noted that the order has been passed by the Taxation Officer under section 122(1) and notice in this regard has been sent to the assessee as mentioned in the amended order under section 122(9) and nowhere in that order, subsections (5) or (5)(a) of section 122 has been mentioned.

In view of these legal infirmities, I am of the view that the learned CIT(A) has upheld the amended order and has not considered the fact that Taxation Officer has not mentioned in the order that which of the order is going to be amended. The impugned order of the learned CIT(A) is, therefore, vacated and the amended order passed by the Taxation Officer being illegal is annulled.

The appeal filed by the assessee is allowed.

C.M.A./47/Tax (Trib.)Appeal accepted.