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Petitioner: Mass CARGO SERVICE (PVT.) LTD., LAHORE and others VS Respondent: DEPUTY COMMISSIONER OF INCOME TAX WEALTH TAX, LAHORE and others
Court Name: Appellate Tribunal Inland Revenue Judge(s):Jawaid Masood Tahir Bhatti, Syed Nadeem Saqlain, Muhammad Munir
Qureshi, Muhammad Tauqir Afzal Malik Title:Mass CARGO SERVICE (PVT.) LTD., LAHORE and others vs DEPUTY COMMISSIONER OF INCOME TAX WEALTH TAX, LAHORE and others Case No.:I.T.As. Nos.4304/LB of 2000, 2686/LB of 2001 and M.As. Nos.523/LB, 524/LB of 2005 Date of Judgment:2004-02-25 Reported As: 2011 PTD (Trib.) 2005 Result: Order accordingly Judgment ORDER ' SYED NADEEM SAQLAIN (JUDICIAL MEMBER).---Present appeal for the assessment year 1999-2000 has been preferred at the instance of the assessee calling in question the impugned order dated 3-10-2000 passed by the learned CIT(A), Zone-I, Lahore. Department is also in further appeal for the same assessm ent year assailing the impugned order dated 10-4-2001 passed by the learned first appellate authority. The Assessee/appellant has challenged the setting aside of the case by the learned first appellate authority on the legal premises. The Revenue in its appeal contests the direction made by the learned first appellate authority to accept the declared receipts as well as relief given in the additions made under P&L heads. 2. Briefly stated the facts of the case are that assessee a private limited company engaged in the business of freight and forwarding, filed return for the assessment year under appeal declaring net loss of Rs,255,990. Requisite statutory notices were issued whereby the assessee was asked to produce the books of accounts as well as reply in response to the said notice. The reply submitted by the assessee did find favour with the Assessing Officer who rejected the declared version and assessm ent was framed under section 62 of the Repealed Income Tax Ordinance, 1979. The assessee approached 'the learned first appellate authority, who vide order dated 340-2000 set- aside the case and remanded the same for de-novo proceedings to the learned Assessing Officer. The assessee feeling dissatisfied with the order dated 3-10-2000 lodged the second appeal before the Tribunal. It is pertinent to mention here that Assessing Officer in compliance of directions of the
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learned first appellate authority completed the reassessment proceedings under sections 132/63. The assessee was forced to start the second round of litigation which lead to the filing of appeal against the reassessm ent framed before the learned first appellate authority who vide order dated 10-4-2001 accepted the assessee's appeal and cancelled the reassessment framed by the Assessing Officer vide order dated 2-12-2000. Aggrieved by the impugned order dated 10-4-2001 the department is also in further appeal before us. Both of these appeals are being decided by this consolidated order. 3. Mr. Muhammad Arif Chaudhry, FCA was present on behalf of the assessee-appellant whereas Mr. Wajid Akram, DR was present for the Revenue. 4. Learned AR, firstly submitted that re-assessment completed by the Assessing Officer vide assessm ent 'order dated 2-10-2000 was not sustainable in the eye of law for the reason that assessee's second appeal was also pending before the Tribunal. He submitted that Assessing Officer should have waited till the disposal of assessee's appeal pending before the Tribunal. In this regard, he relied upon a judgment of the Lahore High Court reported as 2002 PTD 1195. The facts in supra cited case are somewhat similar to the case of the assessee which is being agitated before us. In the said case the honourable High Court while relying upon a judgment of the Privy Council in the case of "Commissioner of Income Tax, Bombay President and others v. Khaim Chand Ram Das reported as (1938) V. 1.6) ITR-414)" where it was held that assessment once made does not come to an end until proceedings with regard to assessme nt have finally been concluded and since the matter is still pending, reassessm ent order was illegal. This contention found favour by the honourable Lahore High Court and it was held as under:-- 5. "To my mind, the said judgment in the said case support the present petition inasmuch as the matter of first assessm ent is still pending before the Appellate Tribunal and the respondent having been duly intimated of the said fact ought to have waited for the decision of the appeal, the writ petition is accordingly allowed with the observations that the respondent shall wait for the decision of the Income Tax Appellate Tribunal in the appeal of the petitioner and proceed further in the matter, in accordance with the decision of the said Tribunal." 5. Learned DR was asked to rebut the averments made by the learned AR, however, he failed to do so. 6. In the light of above discussion as well as case cited at the bar we have no option but to follow the ratio settled by the honourable Lahore High Court. We are constrained to observe that re- assessm ent completed by the assessing authority vide its order dated 2-10-2000 in pursuance of order of the first appellate authority whereby the case was remanded was nullity in the eye of law. For the simple reason that the assessee had already approached the Tribunal in further appeal and the same was pending for adjudication before the Tribunal. We must say that even the propriety demanded that the Assessing Officer should have waited till any findings were given on the issue by the Tribunal. 7. We, therefore, are inclined to observe that since the reassessment was void ab initio all the proceedings conducted thereafter are also not sustainable in the eye of law. Hence departmental appeal fails. 8. As regards assessee's appeal in the first round of litigation, learned AR vehemently submitted that learned first appellate authority erred in law in recommending the case for de-novo proceedings after having accepted the assessee's stance. He contended that learned first appellate authority should have accepted the assessee's appeal after having observed that assessee's arguments carry weight. Learned CIT(A) was not within the domain of legal frame work while making direction for fresh proceedings. At this juncture he drew our attention to the operative
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paragraph of the impugned order where such findings were recorded. The same is being reproduced for sake of reference:- "Perusal of record lends support to the pleadings made at the bar for the appellant. The Assessing Officer has apparently completed the impugned proceedings without considering the arguments of the learned A.R. Of the appellant. The propriety demanded that instead of ignoring replies to specific notices the Assessing Officer should have acknowledged them and should have properly discarded by counter arguments. Under the fact and circumstances of the case, I find it appropriate to vacate the impugned order for de novo proceedings with the directions that the appellant should be afforded a proper opportunity of being heard. In view of my above findings, the other grounds of appeal do not need any adjudication." 9. We have heard learned counsel of both the parties and have given due consideration to the relevant orders. We feel ourselves persuaded by the arguments addressed by the learned AR at the bar and perusal of the order shows that learned CIT(A) gave categorical findings regarding submissions made at the bar for the appellant. It was also observed by the learned first appellate authority that Assessing Officer has apparently completed the impugned proceedings without considering the arguments of the learned AR of the appellant. 10. For the foregoing reasons and especially in the light of observation recorded by the learned first appellate authority in his impugned order we are of the considered opinion that appeal of the assessee should have been accepted. Giving another chance to the Revenue would have amounted giving premium to the department and also an opportunity to make up deficiencies in the assessm ent framed by the Assessing Officer. 10-A. Appeal of the assessee, therefore, is accepted. The impugned order passed by the learned CIT(A) is hereby vacated. (Sd.) (SYED NADEEM SAQLAIN), JUDICIAL MEMBER ' MUHAMMAD MUNIR QURESHI, (ACCOUNTANT MEMBER).---I have gone through the order written by my learned brother. Respectfully, I disagree with his finding 'that' in assessee's appeal, reassessm ent for assessm ent year 1999-00 framed under sections 63/132 on 2-12-2000 is not tenable in law as assessee's appeal against CIT(A) order dated 3-10-2000 setting aside the original assessm ent framed under section 63 dated 29-4-2000 was 'stately' yet pending before the pending before the Tribunal when reassessment was made. I also disagree with the order of the learned Judicial Member who while disposing of the departmental appeal for 1999-2000 against the order of the CIT(A) (in the 2nd round) dated 2-12-2000, has held that since the original order under section 63 dated 29-4-2000 was not tenable in law as the ex parte order had been recorded, on a date other than that for which notice had been issued to the assessee, the entire assessment proceedings were rendered void "ab initio" 2. Disposing off assessee's appeal against the order of the CIT(A) dated 3-10-2000, the learned Judicial Member has relied on reported judgment cited as 2002 PTD 1195. In the said judgment, the Hon'ble Lahore 1-High Court has held that reassessment made by the Assessing Officer when it had been brought to his notice that assessee "had filed appeal" before the Tribunal against the order of the CIT(A) and the same was "pending", was not tenable in law and the Assessing Officer having been expressly advised that assessee's appeal before the Tribunal was "pending" was bound to defer reassessm ent till such time as the Tribunal had disposed off the pending appeal. 3. I have very carefully perused the High Court judgment cited by the learned Judicial Member and in my considered judgment, the facts and circumstances in the Lahore High Court judgment referred to Supra are not the same as those obtaining in the case of the present assessee. Assessee's case is distinguishable insofar as the record bears out that/when reassessment proceedings were taken up by the Assessing Officer the assessee had "not filed" any appeal before
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the Tribunal against the CIT(A) order dated 3-10-2000 and no such appeal had been filed before the Tribunal till the date that reassessment was finalized i,e, 2-12-2000. The appeal before the Tribunal against the order of the CIT(A), dated 3-10-2000 was filed by the assessee on 7-12-2000 whereas reassessm ent under sections 63/132 has been finalized on 2-12-2000. Prima facie, assessee's case is thus not "on all fours" with the Lahore High Court judgment relied upon by the learned Judicial Member. Assessee's AR has deliberately not stated the, facts correctly before the Tribunal and the precise circumstances obtaining regarding filing of second appeal by the assessee before the Tribunal in the context of the reassessment proceedings have been distorted to derive benefit by confusing and confounding the Tribunal. 4. Given the factual position obtaining in this case, the Lahore High Court judgment relied upon by the learned Judicial Member is, in my opinion, of no avail to the assessee and consequently the reassessm ent framed under sections 63/132 dated 2-12-2000 cannot be knocked down on this score. 5. As regards the finding recorded by the learned Judicial Member when disposing off the department appeal for 1999-2000 that the order of the Assessing Officer under section 62 dated 29-4-2000 was not tenable in law as it had been finalized on 29-4-2000 when notice under section 61 had been issued for 28-4-2000, here too, I disagree with the learned Judicial member and here I rely on Lahore High Court judgments cited as (1996 PTD 1125) and (1975 PTD 58) that unequivocally hold that once default of notice is established assessment can be finalized by the Assessing Officer ex parte at a date other than the date stipulated in the notice and such an assessment was valid in law. That being so, I do not agree that the CIT(A) was bound to knock down the assessment order passed under section 63 dated 29-4-2000 simply because that assessment order is dated 29-4- 2000 when notice under section 61 had been issued for 26-4-2000. The fact of the matter is that the assessee did not appear before the Assessing Officer in compliance to the notice duly severed on him issued under section 61 and did not seek any adjournment and as a consequence the Assessing Officer is fully justified to finalize the assessment ex parte under section 63 on 29-4-2000. 6. In my judgment, the departmental appeal against the order of the CIT(A) dated 10-4-2001 has considerable force. The record bears out the fact that the assessee failed to produce books of accounts and supporting documentation when its case was fixed for hearing both at the time of the original assessm ent as well as when the reassessment was taken up. Such "persistent default" on assessee's part makes an ex parte assessment in the best judgment of the Assessing Officer, inevitable. In my opinion, the assessment as made by the DCIT under sections 63/132 determining total income at Rs,3496892 against declared net loss Rs,255990 is fair and reasonable and consistent with the operative fasts. I therefore, vacate the order of the CIT(A) dated 10-4-2001 and reinstate the assessm ent order framed under sections 63/ 132 dated 2-12-2000. (Sd.) (MUHAMMAD MUNIR QURESHI), ACCOUNTANT MEMBER ' As a difference of opinion has arisen in this case, the following questions are referred to the Hon'ble Chairman, ITAT for appointment of Third Member to resolve the difference:-- In Assessee's Appeal I.T.A. No, 4304/LB/2000 dated 7-12-2000; (a) Whether in the facts and circumstances of the case, the Assessing Officer was bound in law to stay the reassessm ent proceedings consequent to the CIT(A) setting aside, vide order dated 30- 10-2000, the original assessm ent framed under section 63 on 29-4-2000, because the assessee "intended" to file appeal before the Tribunal Against the order of the CIT(A) and to wait for disposal of that "intended appeal" by the ITAT. In Departmental Appeal I.T.A. No,2686/LB/01 dated 21-6-2001 (a) Whether in the facts and circumstances of the case and especially in view of Lahore High Court judgments cited as (1996 PTD 1125) and (1975 PTD 58) ex parte assessme nt finalized on 29-4-2000
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is sustainable in law when notice under section 61 had been duly served for 28-4-2000 on which date neither did the assessee appear before the Assessing Officer nor did it seek any adjournment? (Sd.) (Sd.) (SYED NADEEM SAQLAIN) (MUHAMMAD MUNIR QURESHI) JUDICIAL MEMBER ACCOUNTANT MEMBER AS PER MR. MUHAMMAD TAUQIR AFZAL MALIK, JUDICIAL MEMBER ' This is a difference of opinion before me in which the AR of the assessee has not turned up to substantiate his claim on the questions posed by the honourable Tribunal. ' The DR is present and has supported the order of the CIT(A) and also contended that in the asseste's appeal, the question posed at (a) be answered in negative whereas in the Department's appeal the question be answered in affirmative. As the AR has not appeared, I therefore, deem it fit to dismiss this difference of opinion in default. It is ordered accordingly. (Sd.) (MUHAMMAD TAUQIR AFZAL MALIK) JUDICIAL MEMBER ORDER ' JAWAID MASOOD TAHIR BHATTI (JUDICIAL MEMBER).---The applicant through these two Miscellaneous Applicants has requested for recalling the order of this Tribunal dated 20-7-2005 dismissing in default for non-prosecution the matter of difference of opinion in the order on the cross appeals bearing I.T.A. No,4304/LB/2000 filed by the assessee and I.T.A. No,2686/LB/2001 filed by the department for the assessm ent year 1999-2000. ' Learned counsel for the applicant has submitted that matter of difference of opinion was fixed on 20-7-2005 and he attended the court late due to bronchitis attack on the way. He has, therefore, requested that matter may please be decided on merit. After considering the above circumstances, the order of this Tribunal dated 20-7-2005 dismissing the matter of difference of opinion in default is recalled and the matter is directed to be fixed for hearing on 29-3-2006after issuing notices to the concerned parties. Both the miscellaneous applications filed by the assessee are disposed. ' Arif Chaudhry, C.A. ' Shahid Sattar, D.R. For Department. 21. This matter was marked to my learned brother, Mr. Muhammad Tauqir Afzal Malik, learned Judicial Member (as he then was) by the Hon'ble Chairman to resolve the difference of opinion arisen between my learned brothers, Syed Nadeem Saqlain, Judicial Member and Mr. Muhammad Munir Qureshi, Accountant Member (asj he then was) regarding two questions one each for both the titled cross appeals for the assessment year 1999-2000 as have been referred in the above paras of the order. ' My learned brother, Mr. Muhammad Tauqir Afzal Malik, learned Judicial Member (as he then was) dismissed the matter in default for non-prosecution vide order dated 20-7-2005. The assessee filed misc. Applications to recall the above referred Order dated 20-7-2005. Assessee also filed application before Honourable Chairman with the request for nomination of some other Member to resolve the difference. The Hon'ble Chairperson has assigned the undersigned to resolve the difference of opinion. As the order dated 20-7-2005 passed by my Learned brother Mr. Muhammad Tauqir Afzal Malik. Judicial Member (as he then was) has already been recalled vide Order dated 1- 3-2006 in M.As. Nos.523 and 524/LB/2005, the questions referred are answered in the following paras. 22. Regarding dismissing the matter of difference of opinion, I have found that due to lack of proper assistance and wrong pleading and misconception of newly promulgated Income Tax Ordinance, 2001 on the part of the learned D.R. As nobody appeared to represent assessee, my learned brother the Judicial Member (as he then was) as referee member, dismissed the difference of opinion in
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default. In the history of taxation, this scenario to my knowledge has code up first time which will be discussed in the foregoing paragraphs for better perception and clearance of the point on the issue of dismissal of the difference of opinion on default by referee Member. The scope, nature, intention of the legislature and the circumstances leading to dismissal of appeal or dismissal of difference of opinion in default has been dealt during discourse. 23. Apart from the above, I also intend to record my observations on the point of powers, restrictions, limitations, scope and ambit of referee Member (s) while resolving the difference of opinion. ' I would like to take first, point viz. Dismissal of difference of opinion in default by referee Member/Judges. Before I embark upon the issue, it is necessary to quote the relevant subsection (2) of section 132 of the Income Tax Ordinance, 2001 for bringing a clear and correct appreciation and interpretation/intention of the legislature. The said section 132 reads as under: "132 Disposal of appeals by the Appellate Tribunal.-- (1) The Appellate Tribunal may, before disposing of an appeal, call for such particular as it may require in respect of the matters arising on the appeal or cause further enquiry to be made by the Commissioner. (2) The Appellate Tribunal shall afford an opportunity of being heard to the parties to the appeal and, in case of default by any of the party on the date of hearing, the Tribunal may if it deems it, dismiss the appeal in default, or may proceed ex parte to decide the appeal on the basis of available record. (underling is for emphasis) From the above quoted section it is unambiguously clear that the said section deals with only the default of appeal and not the subject of difference of opinion. The default of appeal is a new phenomenon in the Income Tax Ordinance, 2001. Earlier there is no concept of such kind in Taxation history. The dismissal of appeal on default has been derived from the Civil Procedure Code whereby the suits are dismissed in default. It is also noted that the law encourages the disposal of the cases on merit as held by the superior courts in numerous cases while giving verdict for restoration of the suit, appeals, petition etc. As the case may be. The Tribunal performs judicial functions and in deciding appeal, all materials and not only a part of it must be considered. An order of Judicial Authority, like that of an Appellate Tribunal, is a solemn one, and the Tribunal should devote great care in expressing it. The Tribunal has also inherent and ancillary powers to restore, recall and rehear the matter/appeal dismissed in default or decided to proceed ex parte on the basis of available record while exercising discretionary powers to invoke subsection (2) of section 132. I must observe here that the discretion given under this section to the Tribunal is a wholly judicial discretion which is embodied first time in the Income Tax Ordinance, 2001 and must be exercised in accordance with legal principles and not in an arbitrary or capricious manner. It would be pertinent to note that at an international Tax Conference held in Singapore a few years ago, the experts pointed out that a tax administration which disposes of appeals promptly and reaches a fair and final settlement speedily, is itself to be classed as a tax incentive. The avalanche of ill-conceived changes and complications, which may be compendiously called "legal litter" to my view are mainly responsible for the poor quality of tax administration. 24. The relevant subsection (2) of section 132 of the Ordinance, 2001 is a discretionary in nature as the legislature has used the words "the Tribunal may if it deems fit, dismiss the appeal in default or may proceed ex parte. This subsection clearly give the discretionary powers of dismissal of appeal on default. This is not necessary that in every and each case this discretion? By powers may be exercised. The said section relates to dismissal of the appeal and in my view the referee Member (s) cannot dismiss the case of difference of opinion due to default of party as while hearing difference of opinion the referee member does not act as independent court or appellate court.
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Even if, it is presumed that the referee member can exercise this discretion as envisaged under subsection (2) of section 132 and may dismiss the assigned difference of M opinion in default for non-prosecution, it will redundant the provision of section 130(10), thus the difference of opinion will remain intact and there is no resolution of difference of opinion and whole scheme of the law shall fall on the ground. The referee Member (s) should concur with the either Member and cannot give the third opinion or separate findings or views contrary to the agreeing member. Therefore, the Hon'ble Chairperson is perfectly right in assigning this task to me to resolve the difference of opinion as referee member regarding issues which have arisen due to the different views by the two learned brothers on the subject in cross appeals. 25. Now, I revert to the point of scope, powers functions, restrictions and limitations enjoyed by the referee Member. I have privilege to refer the relevant subsection (10) of section 130 of the Income Tax Ordinance, 2001 "(10) If the members of a bench are equally divided on a point, they shall state the point on which they differ and the case shall be referred by the Chairperson for hearing on that point by one or more other members of the, Appellate Tribunal, and the point shall be decided according to the opinion of the majority of the members of the Tribunal who have heard the case including those who first heard it." ' From a glossary reading of the above said subsection and my own study from the case laws on the subject the following analysis of subsection (10) emerges:- In a case, where there is difference of opinion amongst the members, the point has to be decided by the opinion of the majority, if there is a majority; but if the members are equally divided, they are to state the point or points on which they differ and the case shall be referred by the Chairperson of the Tribunal for hearing on such point or points by one or more of the other members of the Tribunal, and such point or points shall be decided according to the opinion of the majority of the members, who have heard-the case including those who first heard it will prevail. It is pertinent to mention here that when an issue is raised and referred to the Hon'ble Chairperson for making reference to a third member, the Hon'ble Chairperson will refer the said matter to a third member. It is to mention here that under this subsection, the third Member or Members have been conferred a limited power and they are competent to decide only the…
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