2009 P T D (Trib.) 2007
[Income-tax Appellate Tribunal Pakistan]
Before Jawaid Masood Tahir Bhatti, Judicial Member and Mrs. Zareen Saleem Ansari, Accountant Member
I.T.As. Nos. 392/KB and 393/KB of 2007, decided on 18/06/2009.
Income Tax Ordinance (XLIX of 2001)---
----S.170---Income Tax Ordinance (XXXI of 1979), S.143-B---Refund---Assessee contended that statement under S.143B of the Income Tax Ordinance, 1979 was filed but the Taxation Officer had wrongly stated in the order under S.170(4) of the Income Tax Ordinance, 2001 that the original statement under S.143-B of the Income Tax Ordinance, 1979 was neither available on record nor any entry on file was available in the relevant receipt, but he had accepted in the assessment order that the tax payer had furnished the certificate in support of his claim of refund---Taxation Officer without any basis had observed that the filing of revised statement under S.143(b) of the Income Tax Ordinance, 1979 and consequent filing of rectification application and refund application were time barred---Claim of refund could not be revised on account of limitation as provided under S.170(2)(c) of the Income Tax Ordinance, 2001---Validity---First Appellate Authority had directed the Taxation Officer to rectify the order passed in the light of revised certificate and issue the refund if found that the deductions of tax were made in excess after verification regarding the assessment years 1999-2000, 2000-2001 and 2001-2002 and tax year 2004 but upheld the treatment meted out by the Taxation Officer for the assessment years 1996-97 and 1997-98 under review despite the facts that the revised certificate for these two years with the claim of refund had been filed after receipts of correct certificate issued by the Executive Engineer who had bifurcated the payment of work, supplies and transportation which had not been reconfirmed by the Taxation Officer from the issuing authority and had rejected the claim of the assessee for the reason that the refund applications were time barred without considering the fact that Appellate Tribunal had already held that the claim of refund could not be rejected on account of limitation---Order of First Appellate Authority was vacated to this extent for the year under review and order passed by the Taxation Officer under S.170(4) of the Income Tax Ordinance, 2001 was set aside with the directions to issue refund in accordance with law if the deductions of tax were made in excess after verification and confirmation from the deducting authority.
(2008) 1997 Tax 16 (Trib.); PLD 1998 SC 64 and (1999) 79 Tax 27 ref.
(2008) 47 Tax 16 (Trib.) rel.
Abdul Tahir, ITP for Appellant.
Dr. Rajabuddin, D.R. for Respondent.
ORDER
JAWAID MASOOD TAHIR BHATTI, (JUDICIAL MEMBER).---Through these two appeals, the appellant has objected to the consolidated impugned order of the learned CIT(A), dated 6-3-2007 for the assessment years 1996-97, 1997-98, 1999-2000, 2001-2002 and tax year, 2004 to the extent of assessment year 1996-97 and 1997-1998 on the following common grounds:--
(1) That the learned CIT(Appeal) Hyderabad has observed in his order that the record further shows that the Assessing Officer finalized the matter on hurriedly manner and he totally ignored the direction of worthy Commissioner of Income Tax Sukkur Zone Sukkur in order under section 122 of the Income Tax Ordinance, 2001. And he also failed to accord approval or permission before rejecting the rectification application from the Additional Commissioner a directed in revision order supra. This attitude of Assessing Officer cannot be approved by the higher judiciaries and not sustainable in the eyes of law.
(2) That it is settled principle that where in a case the 'higher authority modifies, or cancels or annuls, or set-asides the order passed by the lower authority, then that stand merged with the order of the higher authority in such eventuality the lower authority, become functus officio to amend the order passed by him to the extent the decision is rendered by the higher authority.
(3) That the learned Assessing Officer has failed to consider the directions/order of the higher authority, therefore, his order is not sustainable in the eyes of law.
(4) That the learned CIT(Appeals) also observed in his order that when the filing of revised statements on 16-4-2004 after receipt of revised certificate, the appellant stated who filed original statements. The Assessing Officer remarked that the appellant had not filed the original statement under section 143-B for the assessment year 1996-97, 1997-1998, 1999-2000, 2000-2001, 2001-2002 and tax year, 2004. When according to A/R of the appellant that the statements of alleged years were filed by the appellant himself. The Assessing Officer was also not acted in accordance with law as the whole filing of revised statements need not require any proof regarding submission of original statements.
(5) That it reveals that the original statements were very much available on the record of Assessing Officer, but deliberately and intentionally were not presented by the department before the Appellate forum.
(6) That the learned CIT(Appeals) in this order has further maintained that rectification application by the Assessing Officer on the ground that he failed to provide the evidence. The action of Assessing Officer is not in accordance with law and totally on misconceived facts as the revised certificates have already been filed during the course of proceedings and also the reconfirmation of the certificate from the issuing authority. This is mistake of facts that was rectifiable and according to law. I, therefore, direct the Assessing Officer to rectify the orders in the light of revised certificates and issue the refund if found that the deduction of tax was made in excess after verification.
(7) That the learned CIT(Appeals) has believed the revised certificates" for the entire years viz., 1996-97, 1997-1998, 1999-2000, 2000-2001, 2001-2002 and tax year 2004 as the whole filing of revised statements need not require any proof regarding submission of original statements and declared that the Assessing Officer was also not acted .in accordance with law as the whole filing of revised statements need not require any proof regarding submission of original statements but the refund for the assessment years 1996-97 and 1997-98 was not given to the appellant, which is totally against the principle of natural justice and equity, as the submissions of original statements were believed to be filed by the appellant for the entire assessment years viz. 1996-97, 1997-98, 1999-2000, 2000-2001, 2001-2002 and tax year, 2004 therefore bifurcation of years, 1996-97 and 1997-98 from issuance of refund is not justified and in accordance with law.
(8) That the appellant has moved an application to Regional Commissioner, dated 29-5-2006. In para. No.10 of the said application it was stated that the Taxation Officer has not submitted the case record before the CIT(Appeals) which creates doubt.
(9) That there were missing of entries in the record of Assessing Officer, which creates doubt, therefore, the benefit of doubt must go in favour of citizen/taxpayer.
(10) That the circumstantial evidence is one of modes to find out guilt or innocence of the accused.
(11) That the refund application for the assessment years 1996-97 and 1997-98 was rejected against the observations made by the learned CIT(Appeals).
2. The Appellant in this case is an individual engaged in the business of Government Contractor of works, Supplier and transporta tion. The assessee applied for issuance of refund under section 170(4) of the Income Tax Ordinance, 2001 for both the years under review, but the Taxation Officer rejected the same. The assessee filed appeal before the learned CIT(A) who has upheld the treatment meted out by the Taxation Officer for the year under review.
3. The learned -counsel representing the appellant has contended that the statement under section 143 was filed by the assessee but the Taxation Officer has wrongly said in the order under section 170(4) that the original statement under section 143-B of the repealed Income Tax Ordinance, 1979 is neither available on record nor any entry of it is available in the relevant receipt, but he has accepted in the assessment order that the taxpayer has furnished the certificate in support of his claim of refund. He has further contended that the Taxation Officer without any basis has observed that the filing of revised statement under section 143(B) of the repealed Ordinance and consequent filing of rectification application and refund application are time-barred. He has in this respect, referred the decision of this Tribunal reported as (2008) 1997 Tax 16 (Trib.) wherein it has been held that the claim of refund can not be revised on account of limitation as provided under section 170(2)(c) of the Income Tax Ordinance. The learned counsel in this respect has also referred the decision of the Hon'ble Supreme Court of Pakistan reported as PLD 1998 SC 64 and the decision of the Hon'ble High Court reported as (1999) 79 Tax 27 (Lah.H.C.).
4. On the other hand, the learned D.R. is supporting the impugned order of the officers below.
5. We have heard the learned representatives of both the sides and have also perused the impugned order of learned CIT(A) and the order passed by the Taxation Officer under section 170(4) of the Income Tax Ordinance, 2001. We have found that the learned CIT(A) in this case has directed the Taxation Officer to rectify the order passed in the light of the revised certificate and issue the refund if found that the deductions of tax were made in excess after verification regarding the assessment years 1999-2000, 2000-2001 and 2001-2002 and tax year, 2004 but has upheld the treatment meted out by the Taxation Officer under review i.e. 1996-97 and 1997-98 despite the facts that the revised certificate for these two years with the claim of refund have been filed after receipts of correct certificate issued by the Executive Engineer who has bifurcated the payment of work, supplies and transportation which are not been reconfirmed by the Taxation Officer from the issuing authority and has rejected the claim of the assessee for the reason that the refund application are time barred without considering the facts that this Tribunal has already held in the above referred decision reported as 2008 PTD (Trib.) 370 that the claim of refund cannot be rejected on account of limitation. We, therefore, vacate the impugned order of the learned CIT(A) to the extent of the order in this respect for the year under review i.e. 1996-97, 1997-98 and the order passed by the Taxation Officer under section 170(4) of the Income Tax Ordinance is set-aside with the directions to issue refund in accordance with law if the deductions of tax were made to excess after verification and confirmation from the deducting authority.
6. Both the appeals filed by the Assessee are allowed.
C. M. A. /99/Tax(Trib.)Appeals accepted.