VS, 2009 PTD-INCOME-TAX-APPELLATE-TRIBUNAL-PAKISTAN 1618 (2009)

Income Tax Ordinance (XXXI of 1979)---

----Ss. 80C, 62, 65 & 66-A---Tax on income of certain contractors and importers---Correction of order---First Appellate Authority cancelled the assessment order for the reason that Taxation Officer had suo motu passed the order under S.180C of the Income Tax Ordinance, 2001 without allowing proper opportunity of being heard to the assessee and wrongly mentioned S.180C of the Income Tax Ordinance, 1979---Department contended that notice was issued and served upon the assessee and order was passed by the Taxation Officer under S.80C of the Income Tax Ordinance, 1979 but mistakenly mentioned S.180C instead of 80C---Assessee contended that Taxation Officer not only passed the order under wrong section but also without jurisdiction---If at all any corrective action was warranted that should have been initiated under S.65 or 66-A of the Income Tax Ordinance, 1979 by the higher authorities---Assessing Officer did not have the provisional power whereas he assumed the same which was not sustainable in the eyes of law---Validity---Assessment order under review did not mention issuance of any show-cause notice prior to initiation of any corrective action---Appellate Tribunal agreed with the contention of the assessee and order of First Appellate Authority was not interfered with and was maintained---Appeal filed by the Department was dismissed.

2007 SCMR 262 rel.

M. Farooq Azam Memon., D.R. for Appellant.

Abdul Tahir Ansari ITP for Respondent.

ORDER

KHALID SIDDIQUI (ACCOUNTANT MEMBER).---These appeals have been filed by the department against the consolidated order of the learned CIT(A), dated 6-3-2007 on the following grounds:--

That the learned CIT(A) was not justified in cancelling the order passed under section 80C of the Income Tax Ordinance, 1979.

That the learned CIT(A) has not considered the facts regarding proper service of show-cause notice on the taxpayer which is evident from record.

That the learned CIT(A) has erred in cancelling the order simply on the basis of typographical mistake as section 180C has been written instead of section 80C. The contents of the order clearly revealed that tax deducted was treated as final liability under section 80C of the Income Tax Ordinance, 1979.

2. Brief facts of the case are that assessee is a commission agent. During the years under consideration Taxation Officer found that assessee was wrongly assessed under section 62 of the Income Tax Ordinance, 1979 because he was basically a commission agent, therefore, was to be assessed under section 80C of Income Tax Ordinance, 1979. The Taxation Officer proceeded to treat the receipts under section 80-C of the Income Tax Ordinance, 1979 vide assessment order, dated 21-10-2005. Assessee being aggrieved with the treatment meted out by the taxation Officer filed the appeals before the learned CIT(A), who vide impugned order cancelled the order passed by the Taxation Officer. Department dissatisfied with the' order of the learned CIT(A) preferred the appeals before this Tribunal.

3. I have heard the learned representatives of two parties and have also perused the impugned order, assessment order and relevant record. On perusal of the impugned order of the learned CIT(A) I have found that he has cancelled the assessment orders for the reason that Taxation Officer had suo motu passed the order under section 180C of the Income Tax Ordinance, 2001, without allowing proper opportunity of being heard to the assessee and wrongly mentioned the section 180C of Income Tax Ordinance, 2001. Before me department has vehemently contended, that notice was issued and served upon the assessee and order was passed by the Taxation Officer under section 80C of Income Tax Ordinance, 1979 but mistakenly mentioned section 180C instead of 80C.

4. The learned A.R., on the other hand, contested that the entire proceedings are without lawful authority and proper jurisdiction. He submitted. that the Taxation Officer not only passed the order under wrongly section but also without jurisdiction. He pleaded that if at all any corrective action was warranted that should have been initiated under section 65 or 66-A of the Income Tax Ordinance, 1979 by the higher authorities. He further argued that the Assessing Officer does not have the revisional power whereas in the instant case he assumed the same which is not sustainable in the eyes of law with regards to wrongful jurisdiction, he placed reliance on the case reported as 2007 SCMR 262. I have also perused the assessment orders under review which do not mention issuance of any show-cause notice prior to initiation of any corrective action.

5. In view of the above facts and circumstances of the case I am inclined to agree with the contention of learned A.R., and hence the order of the learned CIT(A) does not warrant any interference and thus maintained.

6. Consequently, the appeals filed by the department are dismissed.

C.M.A./88/Tax (Trib.)Appeal dismissed.