2010 P T D (Trib.) 660
[Income-tax Appellate Tribunal Pakistan]
Before Khalid Waheed Ahmed, Chairman, Muhammad Jahandar, Judicial Member and Istataat Ali, Accountant Member
LT.As. Nos.1850/IB of 2005 and 96/IB, 97/IB of 2006, decided on 25/04/2009.
(a) Interpretation of Statutes---
----When a law is altered, the existing, rights and liabilities are decided according to the law that existed before alteration unless the new statute shows a clear intention to vary such rights---As far as, the procedural matters relating to mode of trial, manner of taking evidence and forums for entertaining action are concerned, the pending matters-are to be processed in accordance with the new statute.
(b) Income Tax Ordinance (XLIX of 2001)---
----Ss. 239 & 210---Savings---Delegation---Assessments pending in respect of any income year ending on or before 30th day of June, 2002 on the commencement of Income Tax Ordinance, 2001 shall have to be dealt with in accordance with Income Tax Ordinance, 1979---As to procedural matters, there seems a departure as to the forums of processing of those pending assessments and the jurisdiction had been conferred on an income tax authority, made competent under the Income Tax Ordinance, 2001, which shall act in accordance with the procedure specified in the Income Tax Ordinance, 1979---In the scheme of Income Tax Ordinance, 2001, the tax authority was the Commissioner to whom all the powers of processing the cases for assessment were vested but there were also provisions of delegation of powers and function by the Commissioner to the Taxation Officer.
(c) Income Tax Ordinance (XLIX of 2001)---
----S.210---Delegation---Commissioner in his discretion may delegate all or any of his powers or functions. to Taxation Officer which did not seem open to any question and any functions/powers so delegated, when performed, shall be deemed to have been performed by the Commissioner---Delegation of powers to the Taxation Officer was perceptibly a dynamic step which enabled the Commissioner in letting disposal of cases by the Taxation Officer also that might rise on high side in future---Taxation Officer assists the Commissioner by remaining under his direct control and supervision.
(d) Income Tax Ordinance (XLIX of 2001)---
----S.211---Power or function exercised---Non-specification of any particular power in the delegation order---Frame of assessment---Legality of---Taxation officer in exercise of powers/functions delegated to him framed the assessments which shall as per S.211 of the Income Tax Ordinance, 2001 be deemed to have been made by the Commissioner---Such exercise of powers surely related to matters/ assessment which could be dealt with only under the Income Tax Ordinance, 1979---As to the distinction, in relation to any act in terms of framing of assessment which was either deemed to have been performed by fiction of law or actually done or performed by the Commissioner, such a distinction was conceived of only by S.120 of the Income Tax Ordinance, 2001 and surely would not apply to matters pending under the Income Tax Ordinance, 1979---Very act of framing of assessments by the Taxation Officer after being vested with such powers by the Commissioner seems unexceptionable---Contention of the assessee as to the incompetence of the Taxation Officer to frame assessment under the Income Tax Ordinance, 1979 did not carry any weight.
1993 SCMR 1503 distinguished.
Allied Motors v. C.I.T. 2004 PTD 1173 rel.
(e) Income Tax Ordinance (XLIX of 2001)---
----S.211---Power or function exercised---Signing of delegation order---Commissioner being competent authority delegated his powers/ functions to the Taxation Officers, by signing every page---Decision/ order communicated by the Staff Officer of the Commissioner was as good order as could have been signed by the Commissioner himself---For all and sundry, such official communication carried presumption of truth.
(f) Income Tax Ordinance (XXXI of 1979)---
----Ss. 64(3) & 56-Limitation of assessment---Return filed by the assessee displayed the address of the company---Notice under S.56 of the Income Tax Ordinance, 1979 was issued on the last known address--Inference would be that the Taxation Officer had the address of the assessee company for issuance of a notice and contention of the assessee that this notice could not be issued did not carry weight---Assessment framed was within two years as per S.64(3) of the Income Tax Ordinance, 1979 from the end of financial year in which notice under S.56 was issued.
(g) Income Tax Ordinance (XXXI of 1979)---
----S.64---Limitation for assessment---Completion of assessment---Communication of order---Bare ,reading of S.64 of the Income Tax Ordinance, 1979 showed that process of assessment stands completed on the framing of assessment---Term `assessed" could not be equated with the "communication "---Assessment order passed within the prescribed limitation under S. 64 of the Income Tax Ordinance, 1979 was a valid one which may be communicated to the assessee later on---Contention that assessments were time-barred was not sustainable.
I.T.A. No.3934/LB of 2002 and 2007 PTD (Trib.) 803 rel.
(h) Income Tax---
----Combined order---Assessee contended that a combined order for the two years could not be passed and such order was nullity in the eyes of law---Validity---Contention of the assessee was not correct for the reasons that at present the practice being in vogue was that in respect of one assessee, assessments of different years were framed by one order--Assessments of two years by ode order was that of one assessee.
1996 PTD 482 distinguished.
(i) Income Tax Ordinance (XXXI of 1979)---
----S. 63---Best judgment assessment---Estimation of receipts---Principles---Receipts were to be estimated for the purposes of which some meaningful basis had to be evolved---Best judgment was not a punishment which was meted out to the assessee but it was a fair and proper estimate after taking into consideration the condition of the market, assessee's circumstances, knowledge of the history of the assessee and other parallel cases---Taxation Officer had not adverted and indulged into such an analysis which smacked of his inept exercise of powers---Estimation of receipts and that of the expenses for all years could not be upheld---To the extent of estimation of receipts including expenses the assessment orders for the years under consideration along with order passed by the First Appellate Authority was set aside by the Appellate Tribunal and the cases were remanded to the Taxation Officer for estimation of receipts and expenses afresh after affording an opportunity to the assessee of being heard.
Waseem Ahmed Siddiqui FCA for Appellant.
Mrs. Shahina Akbar, Legal Advisor (LA) and Ch. Qasim, Taxation Officer for Respondent.
ORDER
MUHAMMAD JAHANDAR, (JUDICIAL MEMBER).---This order shall dispose of the instant appeals, filed by the assessee one against an order dated 31-10-2005 relating to assessment year 2000-01 and two others against order dated 28-11-2005 relating to assessment years 2001-02 and 2002-03.
2. Briefly, the facts are that assessee being a private limited company was established to provide consultancy including orthopaedic surgery. For the assessment year 2000-01, as per assessment order, no return was filed whereon a notice under section 56 of the Income Tax Ordinance, 1979, since repealed (hereinafter called repealed Ordinance) was issued to the assessee on 3-9-2001 requiring him to file the return followed by other notices under sections 61 and 62 of the repealed Ordinance. In response, however no return was filed and the assessee submitted through a letter dated 27-9-2001, with reference to a notice dated 15-9-2001 issued under section 61 of the repealed Ordinance, that due to last dates for filing of the income tax returns it was not possible to appear on the date of hearing. The assessee was again served with another notice under section 61 directing Him to provide audited accounts and other documents but the assessee did not furnish the required evidence and requested for copies of notice under section 56 of the repealed Ordinance and order sheet which were provided to him. Consequently, the Assessing Officer, due to non-cooperation of the assessee, proceeded to frame the assessment under section 63 of the repealed Ordinance for the assessment year 2000-01 by assessing the receipts at 5,000,000 and determined the net income at Rs.4,900,000. The assessee aggrieved of this treatment went in appeal before the learned C.I.T.(A) challenging the issuing of any notice under section 56 of the repealed Ordinance and that of denial of filing of any return by the assessee. The assessee also agitated the assessment as time-barred and that of estimates of receipts to be excessive. The learned C.I.T.(A) however, vide impugned order dated 31-10-2005 upheld the assessment order and dismissed the appeal.
3. The facts relating to assessment years 001-02 and 2002-03 as per assessment order are that the assessee filed returns for the said years by declaring net loss of Rs.442,156 and R.s.157,293 respectively and since no details were furnished, notices under sections 61 and 62 of the repealed Ordinance were issued. However, in. view of no evidence being filed in support of the declared version, assessments under section 63 of the repealed Ordinance were framed on 30-6-2004 by estimating the receipts at Rs.6,000,000 and Rs.7,000,000 and net income was determined at Rs.6,231,495 and Rs.7,000,000 for the assessment years 2001-02 and 2002-03 respectively. The assessee aggrieved of this treatment went in appeal before learned C.I.T.(A) contending that the assessments were time barred and that the receipts were excessive. However learned C.I.T.(A) vide impugned order dated 28-11-2005, for both the years dismissed the appeals.
4. Hence these appeals by the assessee for the assessment years 2000-01, 2001-02 and 2002-03 before this Tribunal on the following grounds:--
ASSESSMENT YEARS 2000-01
1.That no notice under section 56 of the Income Tax Ordinance, 1979 was ever issued/served to the assessee for the assessment year under appeal.
2.That any notice, if issued under section 56, is illegal, as the department is estopped to issue such notice by its own conduct and behaviour.
3.That the assessment order is barred by limitation of time.
4.That the assessment made under section 63 of the repealed Ordinance is not a best judgment assessment.
5. That the receipts taken by the learned Assessing Officer are highly excessive and against the facts of the case.
6. That the learned Assessing Officer has unjustly disallowed the expenses claimed.
7. That the net income assessed is highly excessive and unjust.
ASSESSMENT YEAR 2001-2002.
1.That the appellate order passed under section 129 of the Income Tax Ordinance, 2001 is illegal and void. The impugned appellate order is liable to be cancelled/annulled.
2.That the assessment made under section 63 of the repealed Ordinance is not a best judgment assessment.
3.That the learned Assessing Officer has passed a combined order for two years i.e. assessment years 2001-02 and 2002-03. The combined assessment order for two years is illegal and nullity in law.
4.That the assessment is barred by limitation of time as prescribed in the Income Tax Ordinance, 1979.
5.That the receipts are completely verifiable and the learned Assessing Officer has arbitrarily assessed receipts on the higher side.
6.That the learned Assessing Officer has illegally rejected the expenses on account of directors salaries.
ASSESSMENT YEAR 2002-03
1.That the appellate order passed under section 129 of the Income Tax Ordinance, 2001 is illegal and void. The impugned appellate order is liable to be cancelled/annulled.
2.That the assessment made under section 63 of the repealed Ordinance is not a best judgment assessment.
3.That the learned Assessing Officer has passed a combined order .for two years i.e. assessment years 2001-02 and 2002-03. The combined assessment order for two years is illegal and nullity in law.
4.That the receipts are completely verifiable and the learned Assessing Officer has arbitrarily assessed receipts on the higher side.
5.That the learned Assessing Officer has illegally rejected the expenses on account of directors salaries."
5. After filing of the aforesaid appeals, the assessee filed an application for being allowed to take two additional grounds arguing that the same being legal one, may be taken up even at this stage of appeal before the Tribunal which are as follows:--
ADDITIONAL GROUNDS:--
"1. That the assessment made is illegal as the power/function of assessment relating to income year ending on or before 30th day of June, 2002 is not liable to be delegated under section 210, read with section 239 of the Income Tax Ordinance, 2001.
2. That the delegation of power is mala fide illegal and against the main purpose of the Income Tax Ordinance, 2001.
6. Arguments on additional grounds have been heard and as these grounds involve issues of legal nature which go to the very exercise of jurisdiction by the Taxation Officer, the same are allowed to be taken by the assessee.
7. Learned AR took up additional grounds first, being common in all the three 'years, by arguing that sections 210 and 211 of the Income Tax Ordinance, 2001 (hereinafter called Ordinance, 2001), which deal with the delegation of powers by the Commissioner to the Taxation Officer, do not however envisage the delegation of powers to the extent of making of assessment for the scheme of the new Ordinance seems to be, that the function of the assessment being of an important nature and having quasi-judicial trappings should be discharged by a senior tax officer only who in the present arrangement is the Commissioner. He also referred to section 120 of the Ordinance, 2001 to contend that whenever a taxpayer furnishes a return of income for a tax .year, the Commissioner is taken to have made an assessment of taxable income for that tax year and the return is deemed for all purposes of the Ordinance 2001 to be an assessment order issued to the taxpayer. Learned counsel is of the view that the instant provision being a deeming one is relatable to the functions of the Commissioner and such, a function which is deemed to have been performed by the Commissioner by fiction of law, could not be delegated to the Taxation Officer. In addition, learned counsel also contended that subsection (2) of section 239 of the Ordinance, 2001 being a saving clause, provides disposal of matters pending including framing of assessment at the time of commencement of the Ordinance, 2001 by an income tax authority, which is the Commissioner only. Further learned AR took an exception to the delegation order dated 1-7-2002 to maintain that the same is not valid; firstly, it has not been signed by the Commissioner and secondly, the order does not specify the nature of the powers having been delegated to the Taxation Officer. He argued that in absence of specification of the powers the delegation order is nullity. In this regard he referred to 1993 SCMR 1503.
8. As against this, learned Legal Advisor maintained that the Income Tax Ordinance, 2001 has espoused a mechanism whereby, although the Commissioner is to make the assessment, may that be actual or by fiction of law deemed in some circumstances, yet he has been empowered under section 210 read with 211 of the Ordinance 2001 to delegate any or all of his powers and functions to the Taxation Officer and the powers so conferred and exercised by the Taxation Officer are treated as having been exercised or performed by the Commissioner, which presumably would be under the direct control and supervision of the Commissioner ensuring fairness and correctness. Learned LA further contended that the perception of the learned AR as to the non-existence of any cushion, enabling the Commissioner to delegate the powers to make assessment is not correct. As regards the non-signing of the delegation order dated 1-7-2002 by the Commissioner, learned LA contended that all pages of the order were signed by Commissioner, and the official business is conducted in a manner that invariably an order, having been passed by a competent authority, is communicated by a staff officer and for all intents and purposes the same is taken to have been communicated by the competent authority and thus there is no lacuna in the order. In respect' of the non-specification of powers and functions in the delegation order, learned LA maintained that the delegation order shows that all the powers including making of assessment, exercisable by the Commissioner under the Ordinance, 2001, have been delegated. As to the authority, quoted by learned LR viz 1993 SCMR 1503, learned LA opined that the same is distinguishable for, in the said judgment, the delegators had no power which he could delegate.
9. At the outset, it may be stated that indisputably when a law is altered, the existing rights and liabilities are decided according to the law that existed before the alteration unless the new statute shows a clear intention to vary such rights. However, as far as the procedural matters relating to mode of trial, manner of taking evidence and forums for entertaining action are concerned, the pending matters are to be processed in accordance with the new statute. Given this situation, it seems that section 239 of the Income Tax Ordinance, 2001 has been couched and fashioned in the same pattern; for ready reference relevant extracts are as follows:-
"239. Savings.---[(1) Subject to subsection (2), in making any assessment in respect of any income year ending on or before the 30th day of June, 2002, the provisions of the repealed Ordinance, in so far as these relate to computation of total income and tax payable thereon shall apply as if this Ordinance has not come into force.]
[(2) The assessment, referred to in subsection (1), shall be made by an income tax authority, which is competent under this Ordinance to make an assessment in respect of a tax year ending on any date after the 30th day of June, 2002, and in accordance with the procedure specified in section 59 or 59 A [or 61] or 62 or 63, as the case may be, of the repealed Ordinance.]
[(3) The provisions of [subsections] (1) and (2) shall apply, in like manner, to the imposition or charge of any penalty, additional tax or any other amount, under the repealed Ordinance, as these apply to the assessment, so however that procedure for such imposition or charge shall be in accordance with the corresponding provisions of this Ordinance.]
(4) Any proceeding under the repealed Ordinance pending on the commencement of this Ordinance before any income tax authority, the Appellate Tribunal or any Court by way of appeal, reference, revision or prosecution shall be continued and disposed of as if this Ordinance has not come into force."
10. From the above it thus appears that the assessments pending in respect of any income year ending on or before 30th day of June, 2002 on the commencement of Income Tax Ordinance, 2001 shall have to be dealt with in accordance with repealed Ordinance. As to procedural matters, there seems a departure as to the forums for processing of those pending assessments and the jurisdiction has been conferred on an income tax authority, made competent under the new law, which, however, shall act in accordance with the procedure specified in the repealed Ordinance. in the scheme of new Ordinance, the aforesaid income tax authority is the Commissioner to whom all the powers of processing the cases for assessment are vested but there are also provisions of delegation of powers and functions by the Commissioner to the Taxation Officer, the relevant provisions are as follows:--
Section 2 of 2001
(13) "Commissioner" means a person appointed as a Commissioner of Income Tax under section 208, and includes a Taxation Officer vested with all or any of the powers, and functions of the Commissioner.
Section 210 of 2001
Delegation.---(1) The Commissioner may, by an order in writing, delegate to any Taxation Officer all or any of the powers or functions conferred upon or assigned to the Commissioner under this Ordinance, other than the power of delegation.
(2) An order under subsection (1) may be in respect of all or any of the persons, classes of persons or areas falling in the jurisdiction of the Commissioner.
(3) The Commissioner shall have the power to cancel, modify, alter or amend an order under subsection (1).
211. Power or function exercised.---(1) Where, by virtue of an order under section 210, a Taxation Officer exercises a power or performs a function of the Commissioner, such power or function shall be treated as having been exercised or performed by the Commissioner.
(2) The exercise of a power, or the performance of a function, of the Commissioner by a Taxation Officer shall not prevent the exercise of the power, or the performance of the function, by the Commissioner.]
11. In view of above, the Commissioner thus in his discretion may delegate all or any of his powers or functions to the Taxation Officer which does not seem open to any question and then any functions/powers so delegated, when performed, shall be deemed to have been performed by the Commissioner. This arrangement by the new Ordinance 2001, as to the delegation of powers to the Taxation Officer is perceptibly a dynamic step which enables the Commissioner in letting disposal of cases by the Taxation Officer also that might rise on high side in future. Now many officers assist the Commissioner by remaining under his direct control and supervision.
12. In the cases in hand, it seems that the Taxation Officer in exercise of powers/functions delegated to him vide delegation order dated 1-7-2002 framed the assessments which shall as per section 211 ibid, be deemed to have been made by the Commissioner. This exercise of powers surely related to matters/assessments which as per law could be dealt with only under the repealed Ordinance. Now as to the distinction, as propounded by the learned AR in relation to any act in terms of framing of assessment which is either deemed to have been performed by fiction of law or actually done or performed by the Commissioner it may be stated that even if it is assumed as correct without conceding for sake of discussion, such a distinction is conceived of only by section 120 of the Income Tax Ordinance, 2001 and surely would not apply to matters pending under the repealed Ordinance. Thus the very act of framing of assessments in hand by the Taxation Officer after being vested with such powers by the Commissioner seems - unexceptionable. In this regard a reference to re: Allied Motors v. CIT 2004 PTD 1173 may not be out of place. In these circumstances the contention of the learned AR as to the incompetence of the Taxation Officer to frame assessment under the repealed Ordinance does not carry any weight.
13. So far as the question of non-specification of any particular power in the delegation order dated 1-7-2002 is concerned, it is discernible that the case-law viz. (1993 SCMR 15(3) referred to by the learned AR is distinguishable as the same pertains to a situation where under subsection (2B) of section 4 of Trade Marks Act, 1940 the Federal Government was required to specify any function which the Federal Government wished the Registrar to delegate but the notification issued did not specify the particular function. In absence of such specification the very order of delegation of power by Registrar was struck down. However, in the cases in hand the delegation order dated 1-7-2002 seems to be in accordance with section 210 of the Ordinance, 2001 which enables the Commissioner to delegate all or any of the powers/functions to the Taxation Officer.
14. As regards the question of signing of the delegation order dated 1-7-2002 the contention of the learned LA appears to be correct that the Commissioner being the competent authority, delegated his powers/ functions to the Taxation Officer, by signing every page which decision was however communicated by a staff officer of the office of the Commissioner and as such the said order is as good an order as could have been signed by the Commissioner himself and for all and sundry, this official communication carries presumption of truth.
15. The next issue involved in all the three years is that of the assessments being alleged by the assessee to be time barred. In respect of assessment year 2000-2001, the contention of the learned AR is that the assessee was never served with a notice under section 56 of the repealed Ordinance for the reason that throughout in the treatment of previous years, the status of the assessee, being a company was not recognized by the department and further no address of the company was available to the Taxation Officer, therefore, it was practically impossible for the Taxation Officer to issue a notice under section 56 of the repealed Ordinance to the assessee company. Subsequently, a notice under section 61 of the repealed Ordinance was issued to the AR of the assessee, and in reply the Taxation Officer was requested to provide a copy of notice under section 56 which was however provided. Learned AR further contended that the assessment for this year was framed under section 63 of the repealed Ordinance on 30-6-2004 which is thus apparently time barred. As regards assessment years 2001-2002 and 2002-2003, learned AR -mentioned that although the assessment order is shown to have been passed on 30-6-2004 but the same was not communicated by 30-6-2004 which was the target date in terms of section 64 of the repealed Ordinance and the assessee was communicated much later therefore the assessments for these two years are also time barred. In rebuttal learned LA maintained that the assessee had filed return for the assessment year 1999-2000 in the status of a company which displayed the address of the assessee, wherefrom, for sure, the assessing officer took help and notice under section 56 of the repealed Ordinance was issued on 30-9-2001 and then, the assessment was framed on 30-6-2004 which as per section 64(3) of the repealed Ordinance was before the expiry of two years from the end of the financial year in which notice under section 56 was issued. Relating to assessment years 2001-2002 and 2002-2003, it was contended by the learned LA, that as per section 64 of the repealed Ordinance, the assessments could be framed by 30-6-2004 which were duly framed. So far as the communication is concerned, it has not been provided by law to be made within the period specified for the framing of the assessment.
16. Learned AR during arguments produced before us a copy of return for the assessment year 1999-2000 and that of notice under section 56 of the repealed Ordinance purportedly issued to the assessee being a company on 3-9-2001. It seems that in respect of assessment year 1999-2000, the assessee at the most could have filed his return by 31-1-2001. Further this return was filed, as stated above by the assessee in the capacity of private limited company and it displayed the address of the company as "House No.150, Street No.48, F-10/4, Islamabad" and it appears that on this given address being the last known the notice under section 56 of the repealed Ordinance for the assessment year 2000-01 was issued on 3-9-2001 to the assessee company, therefore, it can safely be inferred that the Taxation Officer had the address of the assessee company for issuance of a notice under section 56 of the repealed Ordinance and thus the contention of learned AR that this notice could be issued does not carry any weight. In view of this matter, the assessment framed for the year 2000-01 on 30-6-2004 seems to be within two year as per section 64(3) of the repealed Ordinance from the end of the financial year in which notice under section 56 was issued.
17. As regards the issue of limitation in relation to assessment years 2001-02 and 2002-03 it may be said that a bare reading of section 64 of the repealed Ordinance shows that process of assessment stands completed on the framing of the assessment, and the term "assessed" cannot be equated with the "communication". This matter has already been thrashed out by this Tribunal and in a Full Bench judgment viz (ITA No.3934/LB/02 dated 29-3-2006) it was held that an assessment order passed within the prescribed limitation under section 64 is a valid one which may be communicated to the assessee later on. In this regard another judgment reported as 2007 PTD (Trib.) 803 may be referred. Resultantly the AR's contention of the assessments being time-barred is not sustainable.
18. Another issue pertaining to assessment years 2001-2002 and 2002-2003 is that the impugned order dated 28-11-2005, being a combined order for the two years could not be passed and thus is a nullity. In this regard Learned AR referred to 1996 PTD 482. Learned LA rebutted the contention by arguing that the impugned order is not a combined order in the sense contemplated by the aforesaid authority; rather it is an order relating to two assessment years of one assessee.
It seems that the contention of the learned AR is not correct for the reasons; firstly, that at present the practice being in vogue is that in I respect of one assessee, assessments of different years are framed by one order which surely has been authoritatively approved by the superior Courts. In the instant case, the assessments of two years by one order is that of one assessee. Secondly, the case-law referred to by learned AR is distinguishable for in the said case a combined assessment was made in respect of two different assessees, where they were sharing a common name yet they were two different entitles.
19. Learned AR also came up with an argument that for the assessment- year 2000-2001, a return by the assessee was filed but this fact is not borne out by the record. The learned C.I.T.(A) in his order dated 31-10-2005 for the assessment year 2000-2001 has mentioned that the admitted position is that the assessee did not file a return. Before this Tribunal, the assessee has not been able to show by any evidence that the return of income for the said year was ever filed; Further there is no affidavit as per rule 13 of the ITAT rules that the observation of learned C.I.T.(A), as mentioned is not correct. Consequently this contention being groundless is rejected.
20. In respect of receipts, having been excessively estimated, learned AR contended that the assessment orders are not indicative of best judgment assessment. The Taxation Officer has to refer to different factors viz. parallel cases etc. to estimate the receipts including the expenses but none of the same has been done learned LA did not resist this contention. It seems that following allegedly the non-cooperation of the assessee, the receipts however were to be estimated for the purposes of which some meaningful basis had to be evolved. In this regard, there is hardly any need to emphasize that the best judgment is not a punishment which is' meted out to the assessee but it is a fair and proper estimate after taking into consideration the condition of the markets, assessee's circumstances, knowledge of the history of the assessee and other parallel cases. It appears that the Taxation Officer has not adverted and indulged into such an analysis which smacks of his inept exercise of powers. Thus in the given circumstances, the estimates of receipts and that of the expenses for all years under consideration cannot be upheld.
21. In view of the above discussion it is thus imperative that to the extent of estimation of. receipts including expenses the assessment orders for the year under consideration along with impugned orders passed by the learned C.I.T,(A) may be set aside and cases remanded to the Taxation Officer for estimation of receipts and expenses afresh after affording an opportunity to the assessee of being heard. The appeals are accordingly disposed of.
C.M.A./171/Tax(Trib.)Order accordingly.