VS, 2009 PTD-INCOME-TAX-APPELLATE-TRIBUNAL-PAKISTAN 1990 (2009)

(a) Income Tax Ordinance (XXXI of 1979)---

----Ss.65, 62 & 13(1)(aa)---Additional assessment---Definite informa tion---Approbate and reprobate---Cash gift deed filed by the assessee stating that she had received cash gift from her ex-husband was accepted---Complaint was made by the ex-husband of the assessee that the gift deed was bogus---Case was reopened under S.65 of the Income Tax Ordinance, 1979 on the basis of such alleged `definite information' that ex-husband of the assessee was not present in Pakistan on the date of execution of gift deed and addition was made under S.13(1)(aa) of the Income Tax Ordinance, 1979---Validity---At the time of processing assessment, ex-husband of the assessee himself appeared before the Assessing Officer and stated that he had provided the gift to the assessee---Nobody should be allowed to approbate and reprobate and the given two versions being contrary to each other could not be allowed to stand---Ex-husband of the assessee paid advance against purchase of property to the seller through his bank account---Assessee had been house wife and the property was purchased in her name whereas the payment was made, through his ex-husband as he was only earning member and having sufficient funds which was evident from bank transaction---Gift may also be oral and in the present case cash gift deed was from husband to wife although, later on, the marriage had been dissolved---Since source of investment was fully explainable, S.13(1)(aa) of the Income Tax Ordinance, 1979 was not attracted---Order of First Appellate Authority was upheld and the appeal filed by the Department was dismissed by the Appellate Tribunal.

2005 CLC (C-1066); 1995 PTD (Trib) 1 and SBLR 2005 135/D (sic) rel.

(b) Income-tax---

----Approbate and reprobate---Law did not allow to approbate and reprobate and giving two contradictory statements would amount to blow hot and cold at the same time, which was not tenable under the law.

2005 CLC (C-1066); 1995 PTD (Trib) 1 and SBLR 2005 135/D (sic) rel.

Dr. Abdus Sattar Abbasi, D.R. for Appellant.

Abdur Rahim Lakhani for Respondent.

ORDER

The appellant/Department through this appeal has objected to the impugned order of learned CIT(A) dated 1-11-2005 on the sole grounds:--

"That the CIT(A) has failed to appreciate the fact that the donor has denied having gifted the amount of Rs.1,300,000. The alleged admission of gift of Rs.1,300,000 on the 'part of the donor/husband is not established on record. Reliance of the CIT(A) thereon, is not in accordance with law of evidence."

2. We have found that the above referred ground is argumentative narrative and without any specific ground under distinct head. On the merits of the case after perusal of the impugned order of the learned CIT(A) the assessment order and considering the contentions of both the sides we are of the view that the addition has been made by the Taxation Officer under section 13(1)(aa) of the repealed Income Tax Ordinance, 1979 through order under sections 63/132 of the late Ordinance regarding amount which has been claimed by the assessee as cash gift received from her ex-husband. We have found that the original assessment was finalized under section 62. During the course of that assessment the assessee filed a cash gift deed dated 15-5-1995 amounting to Rs.13,00,000 stating that she had received cash gift from her ex-husband. The same was accepted. The Taxation Officer afterwards, on the basis of alleged definite information/complaint made by the ex-husband of the assessee (as she has divorced) wherein he has referred that the gift deed was bogus. The case was reopened under section 65 and the addition under section 13(1)(aa) was made on the alleged basis that the ex-husband of the assessment was not present in Pakistan on the date of the execution of the gift deed. He has claimed to be an employee of the foreign merchant ship and has produced a copy of CDC and certificate of the presence on the ship Ras-Al-Saud, the ship of Kuwaiti Oil Co. SAK. The assessee aggrieved by this treatment preferred appeal before the learned CIT(A). The assessment was set aside for de novo proceedings and during the second round the Taxation Officer has repeated the same fate. The assessee again filed appeal before the learned CIT(A) and in the second round, the learned CIT(A) has cancelled the order passed by the Taxation Officer under sections 63/132 of the repealed Income Tax Ordinance, 1979 deleting the addition made under section 13(1)(aa) of the Ordinance. Hence, this appeal filed by the Department.

3. We have noted that the ex-husband of the assessee has denied the gift given to her ex-wife after the dissolution of marriage. We are of the view that the complaint in this respect filed by the ex-husband of the assessee was afterthought and in wake of marital dispute which has ended with filing of suit for "Khula" of the assessee and it is ill plan to create mental agony of the assessee. We have found that at the time of the purchase of the property the assessee as his ex-husband (which has later on become complainant) has been enjoying a good marital life which is evident from the letter written to the assessee by her ex-husband and further confirmed that the gift has been made by his counsel vide his letter dated 25-9-1999, wherein Mr. Shahid Hussain Zaidi, who is brother of ex-husband of the assessee representing the case in his absence has stated all the facts including, confirmation of gift. We have further noted that in the order sheet entry dated 16-6-2005 at the time of processing assessment before Assessing Officer on 16-6-2005 the said Syed Tahzeeb Hussain Zaidi donor the ex-husband himself appeared and stated that he had provided the gift to the assessee. The relevant portion of the order sheet entry is reproduced hereunder:--

"16-6-2005 Mr. Syed Tahzeeb Hussain Zaidi attended the office and he was of the view that he had provided the gift to the lady."

4. However, subsequently as per order sheet entry dated 22-6-2005 he attended and denied having made any gift to her. It is evident from the above that he has keeping the statement change as suits to the situation. It is well-settled principle that law does not allow approbate and reprobate and giving two contradictory statements is amount to blow hot and cold at the same time, which is not tenable under the law. This view get fortified by the following case laws:--

2005 CLC (C-1066), 1995 PTD (Trib) 1 and SBLR 2005 135/D. (sic)

Wherein it has been held that nobody should be allowed approbate and reprobate and having given two versions being contrary each other cannot be allowed to stand. We have further noted that the ex-husband of the assessee paid advance against purchase of the said property to the seller Mr. Noor-ul-Haq on 25-9-1995 through his Bank Account No.13516-30-5 in Deutsche Bank Ltd. and Second Account No.01090124-05-0. We have further noted that the assessee has been house wife and the property was purchased in her name whereas the payment was made through his above referred ex-husband as he was only earning member and having sufficient fund which is evident from bank transaction. We are further of the view that the gift may also be oral and in this case the said cash gift deed is from husband to wife although later on, the marriage has been dissolved. We are, therefore, of the view that since source of the investment is fully explainable, therefore, section 13(1)(aa) of the repealed Ordinance, 1979 in this case is not attracted. In view of these facts, circumstance and legal position the impugned order of the learned CIT(A) is upheld and the appeal filed by the Department is dismissed.

C.M.A./103/Tax(Trib.)Appeal dismissed.