VS, 2009 PTD-INCOME-TAX-APPELLATE-TRIBUNAL-PAKISTAN 113 (2008)

Income Tax Ordinance (XXXI of 1979)---

----Ss. 62, 65 & 59A---Assessment on production of accounts, evidence etc.---Cancellation of assessment order passed under Ss.62/65 of the Income Tax Ordinance, 1979 on the grounds that assessments framed under Income Tax Ordinance, 1979 after enforcement of Income Tax Ordinance, 2001 were to be opened/rectified/modified under. the provisions of Income Tax Ordinance, 2001 and not under provisions of Income Tax Ordinance, 1979; that prescribed notices clearly showed that Taxation Officer ticked two different clauses which meant that Taxation Officer was not sure with regard to the fact that it was case of under assessment or of escaped assessment; that there was no assessment order in writing which may be rectified assessments were completed under S.59A of the Income Tax Ordinance, 1979 and that no order was passed before 30-6-2001 and 30-6-2002 as provided under S.59(4) of the Income Tax Ordinance, 1979---Order if any, passed on 31-1-2003 was nullity in law and superstructure built was to fall down for want of jurisdiction---Appellate Tribunal held that reasons given by the First Appellate Authority were in accordance with law and result of placing reliance on the decisions of Appellate Tribunal as well as that of superior Court---Order of First Appellate Authority was not interfered by the Appellate Tribunal and appeals of the Department were dismissed.

C.P. No. 702-L/2003 rel.

1997 PTD 47 and 2006 PTD (Trib.) 66 ref.

Mrs. Sabiha Mujahid, D.R. for Appellant.

Siraj-ud-Din Khalid for Respondent.

ORDER

JAWAID MASOOD TAHIR BHATTI, JUDICIAL MEMBER.---Through these two appeals, appellant/department has objected to the consolidated impugned order of the learned CIT(A), dated 1-12-2007 for the assessment years 2000-2001 and 2001-2002 on the following common grounds:--

"(1) That the decision of the CIT(A) is contradictory itself as at one place the CIT(A) held that assessment was framed under section 59A whereas on the other hand that no assessment was available.

(2) That the CIT(A) erred to ignore the decision of apex Court of Pakistan in C.P. No. 702-L/2003 wherein it has been held that even non-mentioned of sub-clause shall not vitiate the whole assessment proceedings.

(3) That the CIT(A) was not justified to ignore the fact that more than one factors may be available a taxpayer's case.

(4) That the CIT(A) erred to ignore the omission of subsection (4) of section 59 of the Income Tax Ordinance, 1979 through Finance Act, 2000.

(5) That the appellant craves permission to add, alter, modify or withdraw any or all grounds of appeal before or at the time of hearing of appeal."

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.

I have found that the learned CIT(A) has cancelled the assessment order passed under sections 62/65 for the following four reasons:--

"(1) that the assessments framed under the repealed Income Tax Ordinance, 1979 after enforcement of Income Tax Ordinance, 2001 are to be opened/rectified/modified under the provisions of Income Tax Ordinance, 2001 and not under the provisions of repealed Income Tax Ordinance, 1979.

(2) That there are four clauses of section 65 of the repealed Income Tax Ordinance, 1979 as under:--

(a) escaped assessment,

(b) been under-assessed,

(c) been assessed at too low a rate,

(d) been the subject of excessive relief.

I have seen office copies of the prescribed notices which clearly show that the Taxation Officer ticked two different clauses which means that the Assessing Officer was not sure with regard to the fact that it was a case of under assessment or escaped assessment.

(3) That there is no assessment order in writing which may be rectified as assessments were completed under section 59A by writing DCR No.

(4) That in this case no order was passed before 30-6-2001 and 30-6-2002 as provided under subsection (4) of section 59. The order was, if any, passed on 31-1-2003 is nullity in law and superstructure built fall down for want of jurisdiction."

The learned counsel representing the assessee supporting the impugned order of the learned CIT(A) has submitted that the case referred in the grounds of appeal by the appellant/department is distinguishable from the present case and facts of that case are totally different. The learned counsel placing reliance on the decision of the Hon'ble High Court reported as 1997 PTD 47 has contended that the Hon'ble Lahore High Court has not approved the order passed by Assessing Officer where before making the order the specific notice under section 65 has not been issued properly. He has in this respect also referred the decision of this Tribunal reported as 2006 PTD (Trib.) 66.

After considering all the facts of the case I am of the view that the case referred in the grounds of appeals has not been placed before this Bench by the department nor the details of that case have been mentioned, therefore, I am unable to consider the case in the present situation. I am of the view that the reasons given by the learned CIT(A) keeping in view the facts and circumstances of the case are in accordance with law and placing reliance on the decisions of this Tribunal as well as the superior Courts of Pakistan. I, therefore, find no warrant for interference in the impugned order of the learned CIT(A) which is upheld that both the appeals filed by the department are dismissed.

C.M.A./101/Tax (Trib.)Appeals dismissed.