COMMISSIONER INLAND REVENUE FBR VS ICI PAKISTAN, 2017 PTD-SUPREME-COURT 1606 (2017)

(Against the judgment dated 13.06.2016 of the High Court of Sindh, Karachi passed in ITRA No.190 of 2012, Constitutional Petition No. D-2302 of 2011)

Income Tax Ordinance (XXXI of 1979) [since repealed]---

----Ss. 65, 66 & 66-A---Income Tax Ordinance (XLIX of 2001), S. 122(5A)---Notice issued under S. 122(5A) of Income Tax Ordinance, 2001 for amendment of assessment order---Limitation period---Notice purportedly issued by the Department under the provisions of S. 122(5A) of the Income Tax Ordinance, 2001, was akin to the notice/proceedings which the Department would initiate in terms of Ss. 66 & 66-A of the Income Tax Ordinance, 1979 as the said notice was issued on the ground that the assessment order was erroneous and prejudicial to the interest of the Revenue---Period of limitation provided under Ss. 66 & 66-A of the Income Tax Ordinance, 1979 was four years and the notice issued by the Department in the present case was beyond such period---Notice in question could not be held to be issued under S. 65 of the Income Tax Ordinance, 2001 as it was not issued on the basis of some definite information---Petition for leave to appeal was dismissed accordingly.

Commissioner of Income Tax v. Elli Lilly Pakistan (Pvt.) Ltd. 2009 SCMR 1279 ref.

Muhammad Sarfaraz Metlo, Advocate Supreme Court for Petitioner.

Dr. Muhammad Farogh Naseem, Advocate Supreme Court and Mahmood A. Sheikh, Advocate-on-Record for Respondent.

Date of hearing: 13th March, 2017.

ORDER

MIAN SAQIB NISAR, C.J.---The respondent company filed its tax returns for the year 2001-02 and the assessment was finalized under section 62 of the Income Tax Ordinance, 1979 (the Ordinance, 1979) by an order dated 29.05.2002. On 30.12.2004, the Department issued a notice under section 122(5A) of the Income Tax Ordinance, 2001 (the Ordinance, 2001) to the respondent seeking to amend the assessment order dated 29.5.2002. The respondent replied to this subsequent notice on 8.3.2005. However the Department took no further action upon the notice dated 30.12.2004 which was subsequently withdrawn. Finally, on 07.05.2007, a notice under section 122(5A) of the Ordinance, 2001 was issued by the Department stating therein that the date of demerger was not properly appreciated by the assessing officer and thus the assessment order passed on 29.05.2002 is erroneous and prejudicial to the interest of the Revenue. This notice was challenged by the respondents through Writ Petition No.1094/2007 and during the pendency thereof, an assessment order was passed pursuant to the notice dated 07.05.2007. This writ petition was allowed by the Division Bench of the learned High Court of Sindh on 30.05.2007 setting aside the notice dated 07.05.2007 and the assessment order passed pursuant thereto. Civil Appeal No.1598/2007 initiated by the Department was dismissed by this Court vide order dated 29.10.2009 by relying upon the judgment reported as Commissioner of Income Tax v. Eli Lilly Pakistan (Pvt.) Ltd. (2009 SCMR 1279). There was a lull for a considerable period when on 20.06.2011 the Department issued another notice to the respondents under section 66 read with section 66-A of the Ordinance, 1979 intending to amend the notice dated 29.5.2002. Aggrieved of this notice, the respondent filed Constitutional Petition No.2302/2011 before the learned High Court of Sindh which, by considering the law laid down in the judgments reported as Honda Shahrah-e-Faisal Association of Persons, Karachi v. Regional Commissioner of Income Tax, Karachi (2005 PTD 1316), Elli Lilly's case (supra) and Commissioner Income Tax v. Islamic Investment Bank (2016 SCMR 816), came to the conclusion that the period of limitation provided under sections 66 and 66-A of the Ordinance, 1979 is four years and that the notice issued by the petitioners on 20.06.2011 is beyond such period.

2.Learned counsel for the petitioners submits that the said notice was in fact issued under section 65 of the Ordinance, 1979 and by relying upon Elli Lilly's case (supra) it is argued that the period of limitation has been provided in section 65 of the Ordinance, 1979 which is five years and the notice issued on 07.05.2007 is within that period. Suffice it to say that after considering the notice dated 07.05.2007 purportedly issued under the provisions of section 122(5A) of the Ordinance, 2001, we find that it is akin to the notice/proceedings which the Department would initiate in terms of sections 66 and 66-A of the Ordinance, 1979 as the said notice was issued on the ground that the assessment order dated 29.05.2002 was erroneous and prejudicial to the interest of the Revenue, the period of limitation for which is four years. We are not persuaded to hold that the notice was issued under section 65 of the repealed law as the notice dated 07.05.2007 was not issued on the basis of some definite information. Even this is not envisaged by the clear language of the notice itself. Besides, as mentioned earlier this notice was set aside by the learned High Court of Sindh vide order dated 30.05.2007 which order kept intact by this Court. It is to be noted that after the judgment in Elli Lilly's case (supra), a fresh notice was issued on 20.06.2011 which was challenged by way of a constitution petition before the learned High Court of Sindh and this was set aside vide impugned judgment as being issued far beyond the period of limitation. The judgment in Elli Lilly's case (supra) has neither provided a new cause of action to the petitioner to issue a notice afresh nor has it in any way extended the period of limitation originally prescribed for such a notice. We do not find there to be any error in such finding warranting any interference. Resultantly, the view set out by the learned High Court is absolutely in accordance with law. Dismissed accordingly.

MWA/C-7/SC Petition dismissed.