VS, 2010 PTD-INCOME-TAX-APPELLATE-TRIBUNAL-PAKISTAN 1181 (2009)

Income Tax Ordinance (XLIX of 2001)---

----S.122, Second Sched., Part IV, Cl. (46-A)---Income Tax Ordinance (XXXI of 1979), Ss.59A & 62---Amendment of assessment---Assessment year 2000-2001---Assessment was finalized under S.62 of the Income Tax Ordinance, 1979---Inspection note was received by the Assessing Officer that consumption of Sui gas was a major raw material energy source which reflected the volume of business---Assessment was amended under S.122 of the Income Tax Ordinance, 2001 which was annulled by the First Appellate Authority---Department contended that First Appellate Authority was not justified to annul assessment order on legal grounds in view of Explanation given in Finance Ordinance, 2002---Validity---Action taken by the First Appellate Authority in cancelling the assessment order for the assessment year 2001-02 was perfectly justified as the assessment was deemed to be accepted under S.59A of the Income Tax Ordinance, 1979 before 30-6-2002---Section 122 of the Income Tax Ordinance, 2001 could not be applied to the assessment completed under Income Tax Ordinance, 1979 prior to 1-7-2003---Appeal filed by the department was dismissed by the Appellate Tribunal being devoid of any merit.

2006 SCMR 109 rel.

Khalid Latif, D.R. for Appellant.

Shoaib Ahmad Sheikh for Respondent.

ORDER

Originally the titled appeal was dismissed on default vide this Tribunal's order dated 7-10-2008 and the said order was recalled through an order dated 23-7-2009 passed in MA No.547/LB/2008. Now we proceed to decide the appeal through this order.

2. The titled appeal has been filed by the Revenue against order dated 30-8-2007 passed by the learned CIT(A) Gujranwala relating to the assessment year 2000-01 to agitate the cancellation of assessment order passed under section 122(1) of the Income Tax Ordinance, 2001.

3. Brief facts giving rise to the present appeal are that the assessee, an A.O.P. derives income from dying and printing receipts on behalf of other parties. The assessment for the year under appeal was finalized under section 62 of the repealed Income Tax Ordinance, 1979. The assessing officer received an inspection note from Additional Director Inspection (Direct Taxes) that the consumption of sui gas is a major raw material energy source which reflect the volume of business. In view of this situation the assessing officer amended the assessment under section 122 of the Income Tax Ordinance, 2001 and income was determined at Rs.15,864,079. The assessee being aggrieved went in appeal before the learned first appellate authority who cancelled the assessment relying on the reported judgment of Hon'ble Supreme Court of Pakistan cited as 2006 SCMR 109.

4. The learned DR for the Revenue submitted that the learned CIT(A) was not justified to annul the assessment order passed under section 122(1) on legal grounds in view of the explanation given in the Finance Ordinance, 2002. The learned AR for the assessee, on the other hand, has advanced the same arguments as were taken before the first appellate authority.

5. We have heard both the sides and perused the available records. We have observed that the action taken by the learned CIT(A) in cancelling the assessment order for the year 2001-02 was perfectly justified since the assessment was deemed to be accepted under section 59A before 30-6-2002. The case relied upon by the learned first appellate authority decided by tile Hon'ble Supreme Court of Pakistan reported as (2006) 93 Tax 197 (S.C.Pak) is on all fours with the case of the present assessee whereby it was held that section 122 cannot be applied to the assessments completed under the repealed Income Tax Ordinance, 1979 prior to 1-7-2003.

6. As a result of the above discussion the appeal filed by the department for the year 2001-02 is dismissed being devoid of any merits.

C.M.A./45/Tax(Trib.)Appeal dismissed.