Rana NADEEM AHMED VS FEDERATION OF PAKISTAN through Secretary Ministry of Petroleum and Natural Resources, Islamabad
2019 P T D 1264
[Sindh High Court]
Before Aqeel Ahmed Abbasi and Arshad Hussain, JJ
Rana NADEEM AHMED
Versus
FEDERATION OF PAKISTAN through Secretary Ministry of Petroleum and Natural Resources, Islamabad and 3 others
Constitution Petition No.D-4685 and C.M.A.s Nos. 22674, 22675 of 2014, decided on 03/02/2017.
Income Tax Ordinance (XLIX of 2001)---
----Ss. 122C &144---Return of income---Amendment of assessment for non-furnishing of return---Procedure and verification by department---Taxpayer impugned order passed by department under S. 122C of the Income Tax Ordinance, 2001 inter alia, on the ground, that the same had been passed without taking into consideration response of taxpayer to show-cause notice---Validity---Impugned order had been passed on misconceived facts and without taking into consideration response of the taxpayer pursuant to show-cause notices issued under Ss. 114 & 122C of the Income Tax Ordinance, 2001 and the return filed by taxpayer / petitioner for the relevant tax period---High Court observed that the Department, instead of passing impugned order, could have verified from its record whether the petitioner had actually filed returns or not, and said impugned order which was passed ex parte had no factual or legal justification---Impugnedorder was set aside---Constitutional petition was allowed, accordingly.
S. Irshadur Rehman for Petitioner.
Muhammad Aqeel Qureshi for Respondents.
ORDER
AQEEL AHMED ABBASI, J.---Through instant petition the petitioner has impugned order dated 30.6.2011, passed by the respondents under section 122-C of the Income Tax Ordinance, 2001, for the tax year 2011, for being illegal and contrary to the facts of the case. Per learned counsel, the petitioner had already filed his return of income for tax year 2011 under acknowledgement at the relevant point of time, however, in spite of such fact, the respondents issued a notice under section 114 of the Income Tax Ordinance, 2001, which was duly respondent by the petitioner under acknowledgement vide letter dated 30.6.2012, thereafter the respondents issued another show cause notice under section 122-C of the Income lax Ordinance, 2001, which was also duly responded in writing by the petitioner under acknowledgment, however, in spite of such facts the respondent had passed an order under section 122-C of the Income Tax Ordinance, 2001 against the petitioner, which is totally illegal and liable to be set aside.
2.Notices were issued to the respondents, pursuant to which comments have been filed wherein it has been stated that since the petitioner did not submit response to the notices under sections 114 and 122-C of the Income Tax Ordinance, 2001, therefore, the respondents were left with no option but to pass an order under section 122-C of the Income Tax Ordinance, 2001. However, when attention of the learned counsel for the respondent was drawn to the submissions made by learned counsel for the petitioner and the documents available on record, which suggest that not only return for tax year 2011 was duly filed by the petitioner under acknowledgment during the relevant period of time, the petitioner also responded to the notices issued under sections 114 and 122-C of the Income Tax Ordinance, 2001, learned counsel for the respondents could not dispute such factual position.
3.In view of hereinabove facts and circumstances of the case, it appears that the impugned order passed under section 122-C of the Income Tax Ordinance, 2001, is based on misconceived facts and has been passed without taking into consideration the response furnished by the petitioner pursuant to show-cause notices issued under sections 114 and 122-C of the Income Tax Ordinance, 2001.
4.We may observe that instead of passing an order under section 122-C of the Income Tax Ordinance, 2001, the respondents could have either verified from the record of the department whether return was filed by the petitioner or should have taken on record the copies of the return submitted by the petitioner to proceed further in accordance with law. However, instead of adopting the legal course, the respondents attempted to pass an ex parte order under section 122-C of the Income Tax Ordinance, 2001, which, under the facts and circumstances of the case, has no factual and/or legal justification.
5.Accordingly, this petition is allowed and the impugned order passed under section 122-C of the Income Tax Ordinance, 2001, is hereby declared to be without lawful authority and of no legal effect. Listed applications also stand disposed of.
KMZ/N-13/Sindh Order accordingly.