COMMISSIONER OF INCOME TAX VS Dr. KHALID JAVED CHAUDHARY, 2008 PTD-LAHORE-HIGH-COURT-LAHORE 1136 (2008)

Income Tax Ordinance (XLIX of 2001)---

----S.122--- Income Tax Ordinance (XXXI of 1979), Ss. 12(18) & 59(A)---Gift---Book---Assessment was finalized under the provisions of S.59(A) of Income Tax Ordinance, 1979--Assessing officer by invoking provisions of S. 122 of Income Tax Ordinance, 2001 amended the assessment and imposed tax on account of gift received by assessee---Appeal filed by assessee was accepted on the ground that the amount shown in books was not in shape of sum claimed or shown as loan and was just a book entry--- Income Tax Appellate Tribunal maintained the decision of Appellate Authority---Validity---When assessee had claimed the amount to be as a transfer entry and had shown it accordingly, no one else including Revenue Department had any discretion to treat it otherwise---Provisions of S.122 of Income Tax Ordinance, 2001 were inapplicable on assessments concluded under Income Tax Ordinance, 1979 (since repealed)--- Income Tax Appellate Tribunal had also taken due care of illegal exercise of jurisdiction under S. 122 of Income Tax Ordinance, 2001 which had also attained finality against the department Reference was dismissed in circumstances.

Messrs Micropak (Pvt.) Ltd., Lahore v. Income Tax Appellate Tribunal, Lahore and 2 others 2001 PTD 1180; Colibrative Heavy Industries (Pvt.) Ltd., Lahore v. C.I.T./W.T., Coys Zone-II Lahore 2005 PTD 2525 and Kashmir Edible Oil Ltd: v. Federation of Pakistan and others 2005 PTD 1621 ref.

Khadim Hussain Zahid for Appellant.

ORDER

This PTR on behalf of the Department is on the basis of the following question of law:--

"Whether under the facts and in the circumstances of the case, the leaned ITAT was legally justified in holding that amount of gift received in cash was immune from provisions of section 12 (18) of the Income Tax Ordinance1979?"

2. The brief facts giving rise to the above question are that the original assessment in this case was finalized under the provisions of section 59(A) of the Income Tax Ordinance, 1979 (Repealed). Subsequently, the same was amended on 12-2-2004 by invoking the provisions of section 122 of the Income Tax Ordinance, 2001. The amendment ended in addition of Rs. 35 lacs on account of the gift received by the respondent-taxpayer. An appeal was filed against the said order which was accepted for the reason that the amount shown in books was not in the shape of "sum claimed or shown as loan" and was just a book entry. Furthermore, the very invocation of the provisions of the new Ordinance of 2001 on the basis of the assessment concluded under the repealed Ordinance, 1979 was also challenged to be as against the very spirit of law of the Income Tax. The First Appellate Authority, however, held that the provisions of section 12 (18) of the repealed Ordinance, 1979, under which, the gift was added, does not apply on the transaction made by adjustment in books and deleted the same. Before the Income Tax Appellate Tribunal, the department appeal again failed. However, the arguments were the same as were appreciated by the learned First Appellate Authority.

3. Learned legal advisor, before us, says that the judgment in this regard given by this Court which has been applied by ITAT in the case of Messrs Micropak (Pvt.) Ltd., Lahore v. Income Tax Appellate Tribunal, Lahore and 2 others (2001 PTD 1180), has discussed the said provisions and its impact up to the 30th June, 1998. Besides, the facts of the case make it clear that the gift was received through cash. So far as the determination of fact at the stage of this Court is concerned, since the learned First Appellate Authority as well as the learned ITAT have given their finding after appreciating that the transaction under discussion was not a cash transaction, there is no reason for appreciation the arguments before this Court. The Tribunal is the last fact-finding authority and their decision on the issue is after appreciating that transfer entry in account books is not covered by the provision of section 12 (18). In fact, the question of law in this case is not the one which has been proposed by the Department. The amount has not been received in cash as is evident from the two orders by the subordinate authorities in terms C.I.T. appeals as well as Income Tax Appellate Tribunal. There is, therefore, a clear mistake in drafting the question of law in this case. The transaction is through a book entry and the question has depicted an incorrect picture of the fact of the case. The question, therefore, could be decided on this score alone.

4. Regarding judgment of the Micropak (supra), the argument that it is distinguishable by the learned legal advisor is also of no help. He has totally ignored that section 12(18), even after, the amendment has only added the words "advanced and gift" and there is no change in its other prefixes and suffixes. The language of the provision otherwise than the addition of two words have remained the same, hence, its impact shall also be accordingly determined. The same after modification speaks as follows:

Section 12(18)

"Where any sum claimed, or shown, to have been received as loan or advance or gift by an assessee during any income year commencing on or after the first day of July, 1998, from any person, not being a banking company, or a financial institution notified by the Central Board of Revenue for this purpose, otherwise than by a crossed cheque drawn on a bank or through a banking channel from a person holding a National Tax Number, the said sum shall be deemed to be the income of the assessee for the said income year chargeable to tax under this Ordinance."

The above language has already been discussed and thrashed out in the judgment reported as Mircro Pak Ltd. (supra). The term "sum" claimed or shown is very conspicuous and cannot be ignored. When the assessee in this case has claimed the amount to be as a transfer entry and has shown it accordingly, no one else including the Revenue Department had any discretion to treat it otherwise. This in fact, is the main spirit of the provision of law and was appreciated in a chain of judgments, of which, the leading one has been mentioned by us above. However, the judgment in the case of Colibrative Heavy Industries (Pvt.) Ltd., Lahore v. C.I.T./W.T., Coys Zone-II Lahore 2005 PTD 2525 is also direct on this issue.

5. Even otherwise, the case was amended under the provisions of section 122 which has been held to be as inapplicable on assessments concluded under the Income Tax Ordinance, 1979 (Repealed). One can refer Kashmir Edible Oil Ltd. V. Federation of Pakistan and others 2005 PTD 1621 in this regard. This case, even if, there would have been some merit, would not help the department as the Tribunal has also taken due care of the illegal exercise of jurisdiction under section 122 of the New Ordinance, 2001 which has also attained the finality against the department.

Dismissed.

M.H./C-1/LReference dismissed.