Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Messrs DEFENCE HOUSING AUTHORITY, ISLAMABAD VS Respondent: C.I.R., LTU, ISLAMABAD
Court Name: Appellate Tribunal Inland Revenue Judge(s): Jawaid Masood Tahir Bhatti, Muhammad Riaz Title: Messrs DEFENCE HOUSING AUTHORITY, ISLAMABAD vs C.I.R., LTU, ISLAMABAD Case No.: I.T.A. No,431/IB of 2014 Date of Judgment:2014-05-22 Reported As: 2015 PTD (Trib.) 1193 Result: Appeal accepted
Judgment ORDER ' Through this appeal the impugned order bearing No, 409 of 2014 dated 14-4-2014 passed by the Commissioner Inland Revenue (Appeals-I), Islamabad has been objected on the basis of grounds set forth in the memo. Of appeal. 2. Brief facts of the case are that the income tax return filed under section 114 of the Income Tax Ordinance, 2001 for the tax year 2012, which was considered as assessment orders under section 120 of the Ordinance. Subsequently, the Additional Commissioner Inland Revenue (Audit-III), LTU, Islamabad disagreed with the deemed assessment order and issued a notice under section 122(9) read with section 122(5A) of the Ordinance claiming that appellant/taxpayer has erred in claiming certain expenses which is prejudicial to interest of revenue. Disagreeing with the response of the appellant, ACIR issued amended assessment order under section 122(5A) and made an addition of Rs,15,750,174,000 to the income and thus created a demand of Rs,5,082,924,275 and being aggrieved from the impugned order, appellant preferred appeal before the learned CIR(A-I) who partially remanded the case and partially confirmed the order of the ACIR hence this appeal filed by the appellant against the impugned orders on the following grounds:- (1) "The appellate order passed by the CIR(A-I) is bad in law, unreasonable, unjust and against the facts, merits and circumstances of the case. (2) That the CIR(A-1) has erred in remanding back the order to the ACIR on account of matters pertaining to addition to income of unearned revenue, deferred participation fee and liabilities written off rather than annulling the amended assessment order because the impugned amended assessm ent order was issued without carefully studying the audited financial statements of the
---
## Page 2
appellant and all the relevant facts, figures and disclosures related to the matters were available on record and there was no need for remanding the case for fresh consideration. (3) That the CIR(A-I) did not appreciated the fact that ACIR has issued the impugned amended assessm ent order based on his own whims and conjectures and just to burden your appellant with the tax demand and respective litigation, which was very much apparent from the show-cause notices issued. (4) That the CIR(A-1) has failed to appreciate that the ACIR has illegally used the provisions of section 122(5A) of the Ordinance for amendment in assessment without identifying the cause due to which the assessm ent treated to have been made under section 120 was considered by him to be erroneous in so far it is prejudicial to interest of revenue. (5) That the CIR(A-I) has failed to appreciate the dicta of superior courts and appellate forum presented before him emphasizing the need of identifying of erroneousness of the order sought to be amended and that it should at the same time be prejudicial to interest of revenue, whereas the impugned proceedings lacked both the elements from the very start. (6) That the CIR(A-1)- also failed to appreciate that the ACIR has tried to misuse the provisions of section 122(5A) by trying to launch fishing expedition in guise of provisions of section 122(5A) of the Income Tax Ordinance, 2001, which exercise/has been critically negated to be the jurisdiction of the section ,0(5A) by the higher appellate forums. (7) That the CIR(A-I) did not appreciated that show-cause notice issued under section 122(9) reflects that ACIR did not even bother to correctly look into the figures, their nature, accounting and tax treatment and above all their presentation in return/assessment order in field. The ACIR erred at the very outset to consider the assets, liabilities and revenue items as expenses and confronted the taxpayer to add back such expenses without having knowledge that your appellant has never claimed such items as expenses and have never deducted them from income offered, hence no question as to add back such unclaimed expenses arise at all. (8) That the C1R(A-I) has failed to understand that ACIR has erred in adding Rs,4,041, 857,000 the whole amount of unearned development revenue to income i,e, in nature of advance received against development work being undertaken in different phases without considering the nature of advance and understanding the revenue recognition policy duly presented in the financial statements. (9) That the c1R(A-1) has failed to appreciate that ACIR has totally failed to understand that the unearned development revenue (advance against development work) has been received in different years and is recognized on the basis of percentage of completion of the relevant phase under the accrual basis of accounting and section 36 of the Income Tax Ordinance, 2001. (10) that the CIR(A-1) has erred in remanding the case to the ACIR on matter of addition to income Rs,4,041,857,000 rather than annulling the order because the addition was made without mentioning of the section under which such amount has been added to income by treating that all the phases have been 100% developed and therefore to his whims, the advance received against development should have been recognized as revenue in full.. (11) That the CIR(A-I) did appreciated the facts and remanding the case back to ACIR on matter of addition made to income amounting Rs,3,110,240,000 appearing as a liability under the head of Deferred Participation Fee in balance sheet of DHAI as this is advance received against the 25 years services to be rendered continuously for the joint venture project of DHA Valley chargeable for each year @ Rs,180,000,000 against the services to be provided under the joint venture project. (12) The CIR(A-I) has failed to appreciate that any income of the member of the AOP (joint venture) can only be recognized as income by the member of AOP once it is offered and assessed for AOP. The member of AOP is not allowed to recognize the income on mismatching basis against the
---
## Page 3
concept of accrual. Additionally, if the member of AOP would recognize the income on mismatching basis it cannot claim tax credit as allowed under section 88A of the Ordinance. (13) That the CIR(A-I) did not appreciated that ACIR has also erred in law by adding to income the advance amount of participation fee in Tax Year 2012 even without mentioning of the section under which it has been added to income, which is unjust- and illegal being against the provisions of Ordinance. (14) That the CIR(A-I) has erred in confirming that ACIR has rightly added to Income the advance amounting Rs,8,228,407,000 received against JV projects future profits. Whereas, ACIR had made this addition without even studying the audited financial statements carefully and without appreciating that such finance facility has been extended to appellant so that it can pay off the outstanding huge bank loans of Rs,8,594,890,000. (15) That the CIR(A-I) has erred in confirming the ACIR has rightly added to income long term advance received from joint ventures against long term joint venture projects which was obtained to pay off the huge bank loans and also failed to appreciate that swapping arrangement made for bank loan repayment has been beneficial for the tax authorities rather than the taxpayer because by swa pping huge bank loans with non interest based advance against future joint venture project profits reduced the interest cost considerably and thus reduced tax losses. (16) That the CIR(A-I) has erred in remanding the case to ACIR on matter of liability written off without appreciating and understanding the fact available on record/accounts presented before him that liability amounting Rs,3,187,000 written off had already been added to income by your appellant. (17) That CIR(A-I) has also failed to appreciate that whenever liability is written off it is charged to income and your appellant has already done so and there was no need of remanding the case back on this count. (18) That the CIR(A-I) has erred in rejecting the ground that the income of the appellant is exempt under section 49 of the Ordinance being Local Government mentioning the reason that the ground was not taken before the ACIR without appreciating that higher appellate forums already held that it is the right of the appellant to raise any question of law at any appellate level. (19) That, the appellant craves, leave to add, alter, withdraw or amend any ground of appeal." 3. Learned AR representing the appellant has agitated that learned CIR(A-I) was not justified in passing the impugned appellate order without considering the fact that the impugned assessment order was based on an incorrect and illegal show-cause notice and edifice built on the same liable to be struck down. He agitated that it is a settled principle of the income tax law that the assessm ent order in field is only open for amendment under section 122(5A) if and only if the two essential requirements contained therein are satisfied and the Commissioner consciously satisfies himself that the two requirements requires him to further proceed for amending the assessment order. He stated that these two essential requirements are:-- (a) Erroneousness of the assessm ent order; and (b) It should also be prejudicial to interest of revenue. ' He maintained that the dictates of law not only clearly identifies these two essential requirements but the jurisprudence has set these requirements to be the touchstone for amending an order using the provisions of section 122(5A) of the Ordinance. He relied upon case of Glaxo Laboratories Ltd v. Inspecting A.C. Reported at PLD 1992 SC 549, Wherein their lordships observed:-- "The Inspecting Assistant Commissioner was authorized under the said section to issue a notice for re-opening the case if he considered that any order passed by the Income-tax Officer was erroneous causing prejudice to the interest of the Revenue. (Underlining is for emphasis) ' He emphasized that the apex court further observed in case reported supra:--
---
## Page 4
"Mere erroneous order of the Income Tax Officer without, causing prejudice to the interest of the Revenue would not authorize the Inspecting Assistant Commissioner to exercise power under section 66-A and the above two requirements were to be necessarily established." (Underlining is for emphasis) In support of his argument, the AR further relied upon case CIT v. Nusrat Corporation reported at 2006 PTD 2660, wherein, The Honorable Lahore High Court, Lahore held:--
"It is noted that the question framed by the appellant converts the distinct criterion of "erroneous assessment" for exercising power under section 66A of the Ordinance into a consequence of the other independent ingredient under the provision, namely "Prejudicial to interest of revenue". This is contrary to the plain language of the section and acknowledges the failure of the appellants record to satisfy the two requirements taken separately." (Underlining is for emphasis)
' He agitated that both the supra cases makes it crystal clear that not only the two ingredients are SEPARATE but the foremost criterion of "Erroneous Assessment" cannot be considered to have been created as a CONSEQUENCE of being "Prejudicial to interest of revenue". Therefore, to proceed for the amendment in assessm ent, the authorities are bound to firstly evaluate that the order brought to be opened for amendment is "Erroneous" and only then the second test be applies i,e, it should also be "prejudicial to interest of revenue". He mentioned that ACIR has moved totally in contrast to the dictates of law as well as settled principles of law by issuing a show-cause notice wherein ACIR alleged that taxpayer has erred in claiming certain expenses without considering the facts of the case that the items being mentioned by him as expenses were not at all expenses and had never been claimed as expenses by appellants in their tax return for the tax year 2012. According to AR of the appellant, this action of the ACIR clearly shows that he did not carefully reviewed the return, audited financial statements attached with the return and the record and confronted the taxpayer/ appellant with items which were not all by nature expenses and were reported as liability on the balance sheet of the appellant.
' The learned AR further agitated that upon highlighting the grave mistake in the show-cause notice issued on 23-10-2013, ACIR issued another continuing notice dated 3-12-2013 under section 122(9) read with section 122(5A) and at para 2 accepted his mistake and mentioned that this notice may be treated as corrigendum of the earlier issued notice. Through the corrigendum notice he not only tried to rectify his grave mistake of claiming the items of liability as expenses claimed in return, but on the basis of reply filed against his first show-cause notice he also demanded information consisting of all the development contracts, cost incurred to date, revenue recognized to date, complete ledger accounts of the parties, various agreements for different projects between joint venture parties and EOBI sale agreement. AR agitated that calling such huge information in guise of section 122(5A) was also illegal as the ACIR was not legally allowed to 'carry out any enquiries in nature of fishing expedition to arrive at any decision of erroneousness of assessm ent that too could have been prejudicial to interest of revenue. AR referred to judgment of this Tribunal reported at 2013 PTD 1557 and 2010 PTD 111 and claimed that section 122(5A) before amendment through Finance Act, 2012 did not allow making or causing to be made enquiries as deemed necessary. AR maintained that the amendment allowing making or causing to be made enquiries is applicable from Tax Year 2013 as it was brought through Finance Act, 2012 and
---
## Page 5
mentioned that in case reported at 109 Tax 85 this Tribunal has already held the amendment brought in Section 122(5A) to be applicable only prospectively and not retrospectively, therefore calling information for tax year 2012 under the guise of section 122(5A) was illegal.
' The learned AR continued his arguments as per grounds of appeal and agitated that the ACIR totally ignored the nature of items he added to income, first of which was Unearned Development Revenue. The development revenue is recognized as revenue on percentage completion method under section 36 of the Ordinance. Whereas, without considering the fact that installments received to the tune of Rs,4,041,857,000 against which the development work has yet not been completed was standing on the balance sheet' of the taxpayer/appellant for tax year 2012 out of which Rs,3,128,492,000 was received in earlier years. The learned AR mentioned that as the audited accounts were also presented before the CIR(A-I), he was unjustified to remand the case back to the ACIR because no further information required verification. The learned AR emphasized that the correlation inferred by the ACIR in show-cause notice was also incorrect and he was incorrectly correlating the unearned development revenue with the Land Revenue recognized, instead of correlating Unearned Development Revenue with the Development Revenue Recognized. The learned AR further agitated that ACIR added to income an amount of Rs,4,041,857,000 without even mentioning any section, which renders the order 'sine qua non'.
' On addition of Rs,3,110,240,000 on account of 'Deferred Participation Fee' The learned AR argued that quiet illogically and illegally ACIR added to income the amount standing as liability under the head ' Deferred Participation Fee' without considering the fact that this amount received in advance relates to the services to be rendered to JV project over next 25 years @ Rs,180,000,000. He mentioned that in DBH (Joint Venture assessed as AOP) Rs,180,000,000 has been claimed as expense and in accounts of the appellant Rs,180,000,000 has been recognized as income on yearly basis to match the revenues with costs incurred on yearly basis. He also mentioned that quiet illogically the ACIR did not considered that Rs,3,110,240,000 has been received in four to five years from 2009 onwards which is apparent from the audited financial statements being filed year on year. He emphasized that the Ordinance requires companies to (sic) their accounts on accrual basis of accounting, which in turn requires the companies to book their revenues and costs on matching principle and cash basis of accounting are not at all allowed to the 'companies, whereby they can book their revenues on the basis of cash received in advance and book their costs when they are incurred in other years.
' On the matter pertaining to addition of Rs,8,594,890,000, the learned AR emphasized that ACIR has ill-founded this liability to make addition to income, as through this financial assistance from the JV project appellant/taxpayer was enabled to repay their huge and expensive bank loans. Through this non-interest bearing finance facility adjustable against the future profits of various JV projects, huge expense claimed yearly by the appellant on account of finance cost has been done away with which is only beneficial for the revenue. He further agitated that treating an advance received by taxpayer adjustable against future JV profits as an income in current year would tantamount denying its right of tax credit available in section 88A of the Ordinance because the tax credit can only be calculated on the share of income appropriated by the JV project to a company who is member of JV and the tax offered by that JV on total profit/income during that year. He emphasized that this treatments is further wrong on the basis because no share of profit from any
---
## Page 6
AOP (JV) can be booked/accrued/inferred by a member of AOP before it is appropriated by the AOP itself. Therefore, the stance of the ACIR and confirmation by CIR(A-I) that because the facility of Rs,8,228,407,000 is adjustable against future profits therefore its receipts should be taxed in current year, are ill founded. He also mentioned that this finance facility was out of the cash received by JV project against sale of plots to EOBI, for which the ACIR has accepted the version of appellant in his impugned order and consider the sale to be sale of plots by JV Project rather than by appellant/taxpayer. In presence of such inference by the ACIR, taxing the amount as income amounting Rs,8,228,407,000 to taxpayer/appellant tantamount double taxation that too without offering any tax credit which should have been available under section 88A.
' The learned AR also agitated that Rs,3,187,000 added to income was Illegal and was apparent on the audited financial statements. The learned CIR(A-I) did not considered that by no stretch of imagination or any accounting practice this liability could have been charged other than to income. He mentioned that this amount had already been charged to income and no double taxation is warranted on this count.
' The learned AR agitated on the legal status of the appellant, he mentioned that this Tribunal already accepted the status of appellant as 'Local Authority' for the purpose of exemption under section 49 for tax Kars from 2005 to 2008. He emphasized that after substitution of term Local Authority with term Local Government and in wake of new provincial Local Government Ordinances/Acts with exception of tribal areas and Islamabad Capital Territory, the treatment of exemption accepted for Capital Development Authority requires the department to treat the appellant discriminatory way to protect the rights of appellant enshrined under Article 25 of the Constitution of Pakistan.
4. The learned DR, on the other hand opposed the contentions advanced by the learned AR by supporting the findings of the authorities below. He has contended that the assertion of the learned AR of the appellant that ACIR assumed jurisdiction without identifying erroneousness in the assessm ent order is not correct. The inspection of the assessment record, the return of total income and audited accounts, pertaining to tax year 2012 transpired that the taxpayer erred in declaring income which was prejudicial to the interest of revenue as the appellant failed to offer receipts from certain transactions for tax which were chargeable to tax as per law. Moreover the items of transactions so confronted were ultimately added to income which is a sufficient proof that deemed assessm ent was erroneous as well as prejudicial to the interest of revenue. The order of the learned CIR(A) is correct in this regard. He has contended that the ACIR issued corrigendum vide office letter No,363 dated 3-12-2013 in which the inadvertent mistake of use of word "expenses" was rectified and it was mentioned that:-
"This further notice may also be treated as corrigendum to above mentioned show-cause notice and the phrase used at para-3 of earlier show-cause notice as claiming the following expenses" may be read as " declaring the following items".
---
## Page 7
' Learned DR has argued that there were mismatches in revenue realized during the year in respect of Phased-I extension and Phase-II as per Note No,19 and revenue recognized in respect of above projects as per Note No,32. For instance unread development revenue in respect of Phase-I extension as reduced by an amount of Rs,99,825,000, whereas, corresponding revenue recognized as per Note No,32 was only Rs,3,625,000. Similarly, unearned revenue in respect of Phase-II realized during the year has been declared at Rs,95,347,000(sic) as per Note No,19, whereas, the corresponding revenue recognized in Note No,32 was Rs,37,733,000. Moreover, examination of financial statements further revealed that no revenue was been recognized whatever, regarding joint venture with multinational ventures developers (MVD), despite, the act that the agreements dated back to 30th June 2008, Above facts clearly showed that Section 36 of the Income Tax Ordinance, 2001 was not been followed properly, therefore, the recognition of revenue made for the year under reference was prejudicial to the interest of revenue. Despite repeated requests the taxpayer failed to file any document/evidence or calculation regarding un-earned development work and corresponding revenue. According to learned DR in the absence of any supporting evidence the stance of the learned AR of the taxpayer was of no value hence was rightly rejected. He has contended that since there were huge mismatches in the amount deleted from development work and corresponding revenue recognized, as confronted vide show-cause notice, the ACIR was left with no option but to take adverse inference in this regard due to non-furnishing of any detail/evidence by the taxpayer/appellant. According to him such treatment is in accordance with the cardinal principle settled by the honourable High Court in the case of Mst. Anwar Begum v. CIT/Wealth Tax another in Writ Petition 14714 YEAR: 1999 DECIDED ON 1/12/199 CITATION: DTPHC 1304; 81 TAX 83; 2000 PTD 864. In the case the honourable court settled a cardinal principle of law that nobody should be allowed benefit of his own misdeeds. According to learned DR the taxpayer realized participation fee from joint venture projects and declared this amount of Rs,3,110,240,000 as advance from joint venture for DHA Valley project. Since, the amount was a fee in nature which is payable by other parties of the joint venture, therefore, there was no reason to defer the recognition of participation fee realized as revenue he has contended that despite repeated requests the taxpayer failed to file any document/ evidence or calculation regarding receipt of participation fee against a concluded agreement. The participation fee was neither a part of revenue from joint venture nor a share from profit of joint venture. In the joint venture agreement it was agreed to be paid but subsequently this was stated to have been prolonged to be made in a period 25 years. Regardless of the subsequent amendment in the mutual agreement the fact remains that the taxpayer has received participation fee at Rs,3,1,10,240,000 and is keeping it as advances in a glaring disregard of the fact that nothing further have to be done by taxpayer in respect of the participation fee that has already been received by it. According to learned DR the ACIR was left with no option but to take adverse inference in this regard due to non-furnishing of any detail/evidence by the taxpayer.
' On the basis of these arguments learned DR has requested to up hold the impugned orders of the officers below.
5. We have…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.