BAHRIA TOWN (PVT.) LTD. VS FEDERATION OF PAKISTAN through Chairman, Federal Board of Revenue, 2015 PTD-ISLAMABAD 1639 (2015)

Income Tax Ordinance (XLIX of 2001)---

----Ss. 122(5A), 122(9) & 177---Constitution of Pakistan, Art.199---Constitutional petition---Amendment in assessments---Further amendments---Petitioner/taxpayer impugned show-cause notice under Ss. 122(9) & 122(5A) of the Income Tax Ordinance, 2001 inter alia on the ground that said show-cause notice was for the purpose of audit/verification of books of the taxpayer and could only have been issued under Ss. 177 & 213C of the Income Tax Ordinance, 2001; and that any reason to hold already completed assessment as erroneous or prejudicial to the interest of the revenue, must be definite and visible from the order sought to be amended, but the same was missing in the present case---Held, that perusal of impugned show-cause notice revealed that only submission of certain documents were required by the Additional Commissioner with regard to an inquiry in order to ascertain the correct position of the revenue and furthermore, reasons for said inquiry had been given in detail in the said show-cause notice---Contention of petitioners that the impugned show-cause notice had been issued to amend already deemed assessment was not correct; as inquiry was to be first held then any conclusion with regard to amendment in assessment would be taken, which may be assailed under the proper forum provided under the law --High Court observed that under the law, it was necessary that the reason to hold already completed assessment as erroneous and pre-judicial to the interest of revenue must be definite and visible from the order sought to be amended, and the same was definite and visible in the present case---Constitutional petition was dismissed, in circumstances.

Collector of Customs and others v. Maple Leaf Cement Factory Ltd. 2012 SCMR 409 rel.

Syed Taqueer Bukhari for Petitioners.

Dr. Farhat Zafar and Sh. Anwaar-ul-Haq, Babar Bilal and Abdullah Alim Qureshi for Respondents.

ORDER

NOOR-UL-HAQ N. QURESHI, J.---Above titled writ petitions are being disposed of vide this consolidated order, as common questions of law and facts are involved therein.

2.Through the above titled writ petitions, the petitioners have prayed as under:--

"It is, therefore, respectfully prayed that the petitioners through these writ petitions have raised an important question of law of general application, which may kindly be answered and if the answer is in affirmative then respondent No.3 may graciously be directed to withdraw the impugned notice in the Interest of Justice. It is further prayed that during pendency of this petition the operation of impugned show cause notice may kindly be suspended".

3.Facts in brief are that respondent No.3 issued show-cause notice dated 19-2-2014 further amendment under section 122(9) read with section 122(5A) of the Income Tax Ordinance, 2001 for Tax Year 2013, as in the opinion of learned Additional Commissioner Inland Revenue, further amendment in the declared version is required, as declared version is erroneous and so far as it is prejudicial to the interest of revenue, hence above titled writ petitions.

4.It is contended by the learned counsel for the petitioners that impugned show-cause notice for the purpose of audit/verification of books of accounts of the petitioners is only permissible under sections 177 and 214C of the Income Tax Ordinance, 2001 and only the Commissioner can do the same. It is provided therein that the Commissioner may call for any record or documents, including books of accounts, for conducting audit of the income tax affairs and after obtaining the record of a person under subsection (1) of Section 177, the Commissioner shall conduct an audit of the income tax affairs including examination of accounts and records, enquiry into expenditure, assets and liabilities of that person and may call for such other information and documents, as he may deem appropriate. It is contended that this exercise cannot be done under section 122(5A) of the Income Tax Ordinance, 2001, rather it should have been dealt in accordance with above provisions i.e. under sections 177 and 214C of the Ordinance. Furthermore, issuance of show cause is also violation of S.R.O. No.1040(I)/2013 dated 5-12-2013, wherein it was provided that the provisions of Section 177 and section 214C of the said Ordinance shall not apply to a taxpayer, whose paid tax is at least 25% more than the tax assessed or paid, whichever is higher, for the tax year 2012. In furtherance, it has been argued that the reason to hold the already completed assessment as erroneous and prejudicial to the interest of revenue must be definite and visible from the order sought to be amended, but no such reason has been suggested by respondent No.3 for amendment of assessment under section 122(5A) of the Ordinance.

5.On the other hand, preliminary objections have been raised by the respondents. It is contended that the petitioners are not aggrieved persons, as no adverse order has been passed so far therefore these writ petitions are premature and liable to be dismissed. Moreover, alternate statutory remedies are available with the petitioners against issuance of impugned show-cause notice therefore above titled writ petitions are not maintainable. It is further contended that factual controversies are involved in these writ petitions which cannot be resolved in writ jurisdiction. The petitioner company has not annexed any resolution of the Board of Directors regarding decision to institute present writ petitions.

6.On merits of the case, it has been argued that impugned show-cause notice has been issued in accordance with law. The petitioners have misconceived the exemption granted under S.R.O. No.1040(I)/ 2013. The Commissioner can make such inquiries as he deems necessary under section 122(5A) of the Income Tax Ordinance, 2001 which is a separate and distinct provision of law.

7.Arguments have been heard and record of the case as well as relevant provisions of law perused.

8.From perusal of show-cause notice dated 19-2-2014 impugned in W.P. No. 1033 of 2014, it is evident that submission of certain documents was required by the learned Additional Commissioner with regard to inquiry in order to ascertain the correct position of revenue from all projects. Further the reasons for enquiry under section 122(5A) are given in detail in the impugned show-cause notices, which the petitioners have overlooked. So, the contention that impugned show-cause notice has been issued to amend the already deemed assessment is not correct, as inquiry is to be first held then any conclusion with regard to amendment of assessment would be taken, which may be assailed before the proper forum provided under the law.

9.Under the law, it is necessary that the reason to hold the already completed assessment as erroneous and prejudicial to the interest of revenue must be definite and visible from the order sought to be amended, which in my view is apparently quite definite and visible as suggested by respondent No.3 for amendment of assessment under section 122 (5A) of the Ordinance.

10.Instead of submitting reply or producing required documents, the petitioners have come to this Court directly which is not permissible under the law. The petitioners have not given any legal basis for bypassing the statutory remedy available to them.

11.Moreover, the factual controversy cannot be resolved through the writ jurisdiction of this Court. In this regard, I am fortified with the case-law 2012 SCMR 409 (Collector of Customs and others v. Maple Leaf Cement Factory Limited).

12.In view of foregoing reasons, I find no substance in these writ petitions which are hereby dismissed, with no order as to costs.

KMZ/27/IslPetition dismissed.