BISMA TEXTILE MILLS LTD. through Chief Executive VS FEDERATION OF PAKISTAN through Secretary, Revenue Division/Chairman F.B.R., 2009 PTD-LAHORE-HIGH-COURT-LAHORE 41 (2008)

Income Tax Ordinance (XLIX of 2001)---

----S. 177---Constitution of Pakistan (1973), Art.199---C.B.R. Circular No.1(1)S(ITAS)/2004---Constitutional petition---Audit---Cases which have been revised under C.B.R. Circular No.1(1)S(ITAS)/2004 or otherwise if the return has been revised and payment has been made by the assessee, no further action shall be taken against him---Assessee, in the present case, having revised its return under the C.B.R. Circular, it was specifically covered by the same---No proceedings, therefore, could be initiated for auditing the assessee under S.177, Income Tax Ordinance, 2001---Proceedings initiated against the assessee were declared to be as against law and were therefore, cancelled.

Writ Petition No.9266 of 2004 fol.

Ch. Muhammad Hussain and others v. Commissioner of Income Tax 2005 PTD 152 ref

Sajjad Ijaz Hotiana for Petitioner.

Mian Yusuf Umar for Respondent.

Date of hearing: 10th October, 2008.

JUDGMENT

KHAWAJA FAROOQ SAEED, J.---Through this writ the petitioner wants indulgence of this Court to declare the notice issued under section 177 to be as unlawful.

2. The brief facts of the present writ petition are that the petitioner for the tax year, 2003 was selected for audit in terms of section 177 of the Income Tax Ordinance, 2001, after having accepted the return which was a deemed assessment. Since tax year, 2003 was first year of the assessment under the Ordinance mentioned (supra), the criteria was fixed after Commissioner's Conference by the Federal Board of Revenue. The petitioner challenged the selection for audit for a number of reasons including that the same is against the parameters decided by the said Conference.

3. This Court vide judgment, dated 28-6-2005 in Writ Petition No.9266 of 2004 allowed the constitutional petition and declared the same as not sustainable in law. The reference was to the judgment of this Hon'ble Court reported as (2005 PTD 152) ref: "Ch. Muhammad Hussain and others v. Commissioner of Income Tax". This judgment was not challenged before any Court, hence attained finality. The case subsequently was again selected for audit on the basis of the judgment of the Hon'ble Supreme Court of Pakistan in the case of "Commissioner of Income Tax and others v. Fatima Sharif Textile, Kasur and others" reported as (2006) 94 Tax 317 (S.C. Pak)].

4. The selection was inter alia challenged on the basis of arguments.

(i) That the petitioner was not a party to the appeals disposed of by the Hon'ble Supreme Court of Pakistan in the case of Fatima Sharif Textile (supra) which was as a result of consent between the litigating parties. The direction to issue fresh notice in the said judgment, therefore, does not apply on the case of the present petitioner.

(ii) That the petitioner had revised its return and the Hon'ble Supreme Court had directed not to issue notice under section 177 where return has been revised.

The issue of the notice under section 177 as such is apparently now in compliance of the order of the Hon'ble Supreme Court.

(iii) That the proceedings under provisions of Income Tax Ordinance against filing of return cannot be initiated after the expiry of the year in which the return is filed.

5. Before proceedings further reference to the relevant para from the judgment of the Hon'ble Supreme Court of Pakistan delivered in the case of Fatima Sharif Textile (supra) is relevant. The directions of the Hon'ble Supreme Court are clear. It is said that in the cases which have revised under Circular No.1 (1)S(ITAS)/2004 or otherwise if the return has been revised and payment has been made by the assessee, no further action shall be taken against them. Since the present petitioner has revised its return under the referred Circular, it is specifically covered by the said directions.

6. No proceedings, therefore, can be initiated for audit against him under section 177 of the Income Tax Ordinance, 2001. Ignoring all other arguments of the learned counsel for the petitioner since his case is covered by the above directions, the proceedings initiated against him are declared to be as against the manadate of the judgment mentioned (supra), the same, therefore, is cancelled.

7. This petition stands disposed of.

M.B.A./B-30/L??????????????????????????????????????????????????????????????????????????????????? Order accordingly.