Mst. SANA HUSNAIN VS The STATE, 2015 PTD-BOARD-OF-REVENUE-PUNJAB 2292 (2014)

Punjab Agricultural Income Tax Act (I of 1997)---

----S. 4---Punjab Agricultural Income Tax Rules, 1997, Rr.3(2)(ix) & 12---Agricultural Income Tax Rules, 2001, R.5---West Pakistan Land Revenue Act (XVII of 1967), S. 164---Assessment of agricultural income tax---Failure to deposit amount of assessed amount before filing appeal---Claim of the petitioner was that notice issued by Assessing Authority to him for filing of income return of total agricultural income for financial years concerned, was not in his knowledge and the Assessing Authority without giving him opportunity of hearing, assessed income tax---Appeal filed by petitioner against Assessing Authority, was dismissed in limine on the sole ground that it was mandatory under R.3(2)(ix) of the Punjab Agricultural Income Tax Rules, 1997, to deposit the total assessed amount before filing, appeal, Which was not so deposited---Petitioner, having failed to fulfil his lawful obligation, Collector issued a notice in terms of S.4 of Agricultural Income Tax Act, 1997---Petitioner, again having failed to respond such notice, Collector assessed the amount of Agricultural Income Tax in terms of R.12 of Punjab Agricultural Income Tax Rules, 1997---Validity---Petitioner, was required to deposit assessed amount up till specified date, but he instead of responding to such notice, opted to file appeal, which was dismissed, as petitioner had failed to comply with mandatory provisions of law---Appeal was rightly dismissed by Appellate Authority, in circumstances.

Sameer Ijaz for Petitioner.

ORDER

WAHEED AKHTAR ANSARI, MEMBER JUDICIAL-III.-- This revision petition has been filed against the order dated 13-12-2013 passed by learned Additional Commissioner (Revenue), Multan Division, whereby appeal of the present petitioner was dismissed in limine.

2. Arguments heard and record perused.

3. Learned counsel for the petitioner argued that learned Assistant Commissioner issued a notice dated 17-5-2013 to the petitioner for filing of income tax return of total agricultural income for financial years, 2011-2012 and 2012-2013 till 30-5-2013 regarding 61-Acres of land. But the said notice was received by servant of the petitioner on 31-5-2014 after the expiry of last date of deposit i.e. 30-5-2014. However, the said notice was not in the knowledge of petitioner as his father remained hospitalized since 20-5-2013 onward. Learned Assistant Commissioner did not give an opportunity of hearing to the petitioner while assessing the agricultural income tax to the tune of Rs. 1,77,850 for year, 2011-2012. However, the petitioner filed an appeal before learned Additional Commissioner, Multan Division, which was dismissed in limine vide order dated 13-12-2013 on the sole ground that it was mandatory under Rule 3(2) (ix) of the Punjab Agricultural Income Tax Rules, 1997 to deposit the total assessed amount before filing the appeal, which was not deposited. The impugned order is against the law and facts of the case which has been passed without appreciating contention and documentary evidence produced by the petitioner. The lower court misconstrued the pleading of the petitioner. The provisions of the said rules are not applicable in this case. The petitioner should have been provided an opportunity of hearing before passing the order by learned Assistant Commissioner. The said order is against the well settled principle of law Audi Alterim Partem. Learned Assistant Commissioner should have called objections from the petitioner, but it was not done. Learned Assistant Commissioner has exceeded to the vested powers as the assessment was made on higher side. The petitioner is a law abiding citizen and is ready to pay the Agricultural Income Tax, therefore, he should be given reasonable opportunity to file the return. Lastly, it was prayed that revision petition may be accepted.

4. I have considered the arguments of learned counsel for the parties and have also gone through record available in the case file including the impugned orders. Brief of the matter is that learned Assistant Commissioner, Mianchannu issued notice dated 1-10-2013 to present petitioner for Rs.1,77,550 on account of Agricultural Income Tax regarding 61-Acres of land situated in Chak No.127/15-L, Tehsil Mianchannu for the period from 1997 to 2001. Feeling aggrieved by the order, the present petitioner filed an appeal before learned Additional Commissioner (Revenue), Multan Division, Multan, which was dismissed in limine vide order dated 13-12-2013. The operative part of the order reads as under:--

The main argument of the petitioner is that while issuing notice for recovery of Agriculture Income Tax, prescribed procedure for issuing such notice under the law has not been observed. So the same has no sanctity in the eyes of law. To examine such contention section 4 of Punjab Agriculture Income Tax Act, 1997 was perused, which authorizes the Collector to assess and collect Agriculture Income Tax. The relevant section is reproduced as under:--

"Assessment and collection of tax.---(1) The tax shall be assessed and collected by the Collector in such manner as may be prescribed.

(2) In case of assessment regarding an owner holding land in more than one patwar circle, the owner shall file a statement regarding the location of his land in the Punjab, in such manner as may be prescribed.

(3) Every person?

(a) whose total agricultural income or the total agricultural income of any other person in respect of which he is assessable under this Act, for any income year (hereinafter referred to as the said income year) exceeds the maximum amount which is not chargeable to tax under this Act; or

(b) who himself or any other person on whose behalf he is assessable under this Act, has, during the said income year, cultivated land measuring?

(i) fifty acres or more or irrigated land; or

(ii) one hundred 'acres or more of irrigated land; or

(iii) irrigated and un-irrigated land the aggregate area of which is equal to or more than fifty acres of irrigated land, one acre of irrigated land being reckoned as equivalent to two acres of un -irrigated land,

shall file a return of his total agricultural income or the agricultural income of such other person, as the case may be, for the said income year in such form and by such date as may be prescribed.

(4) No assessment on the basis of return shall be made by the Collector after the expiration of two years from the end of the assessment year in which the total agricultural income was first assessable.

6. In this particular case, the applicant failed to fulfill his lawful obligation. So, the Collector issued a notice in terms of section 4 of Agricultural Income Tax Act, 1997 read with Rule 5 of Agricultural Income Tax Rules, 2001. The petitioner again failed to respond such notice. Then the Collector assessed the amount of Agriculture Income Tax in terms of Rule 12 of Punjab Agricultural Income Tax, which reads as under:--

"Where any assessee to fails furnish a return of total agricultural income required to be furnished by him under Rule 5 or fails to comply with any of the terms of notice issued under Rule 10 of the Collector of the [Sub-Division] may, by an order in writing assess the total agricultural income of the assessee, to the best of his judgment and determine the amount of tax payable by him".

7. In this particular case, it is admitted that notice from the competent authority was received on 31-5-2013, whereby the petitioner was required to deposit the assessed amount uptill 30-5-2013. It is also admitted that instead of responding to such notice, the petitioner opted to file an appeal before learned Additional Commissioner (Revenue), Multan Division, Multan, which was dismissed on the ground that before filing an appeal the petitioner was bound to deposit the assessed amount in terms of rule 3(2) ix of Rules, 1997, which reads as under:-

"No appeal or petition for review or revision shall lie against an order passed under clause (vii) unless the whole amount of tax payable in accordance with the notice served under clause (viii) has been paid"

8. In this connection, learned counsel for the petitioner contended that the originally Punjab Agriculture Income Tax Act was introduced in 1997 and rules framed under this Act in year 2001. In such rules, there is no mention of such condition to deposit the assessed amount before filing an appeal.

9. The whole exercise shows that of course there in no mention of pre-deposit of assessed amount in rules framed in year 2001, but there is mention of such condition in rules framed in year 1997 and such rules are very much in the field and the rules framed in year 2001 are not in repeal of earlier rules rather it is in furtherance of earlier rules.

10. In view of above, the revision petition is dismissed and impugned order dated 13-12-2013 passed by learned Additional Commissioner (Revenue), Multan Division, is upheld.

HBT/5/Rev.Petition dismissed.