C.I.R., ZONE-VI, R.T.O., LAHORE Versus OMER SHAKEEL

ORDER

CH. ANWAAR UL HAQ (JUDICIAL MEMBER).--- The titled appeal pertaining to tax year 2010, has been preferred at the instance of Revenue, calling in-question the impugned order dated 22-6-2012, passed by the learned CIR (Appeals-IV). Lahore.

2. Briefly stated, the relevant facts in the case are that the department received information that the taxpayer had purchased three motor-vehicles for a total consideration of Rs.3,275,000. Since, the taxpayer has not furnished return of income for tax year 2010, the assessing officer issued statutory notices under sections 114 and 116 of the Income Tax Ordinance, 2001. Allegedly, no response was made by the taxpayer to these notices. The assessing officer, allegedly, issued show cause notice under section 122C read with section 111 of the Ordinance, which was also remained un-complied with. Consequently, the assessing officer proceeded ex parte against the taxpayer and passed a provisional assessment under section 122C for tax year 2010, whereby addition amounting to Rs.32,75,000 was made on account of investment made by the taxpayer on purchase of three motor-vehicle from unexplained income under section 111(1)(b) of the Ordinance.

3. Being aggrieved, the taxpayer 'preferred appeal before the learned CIR(A) and assailed the provisional assessment as illegal being, double assessment. It was the contention of the AR before the CIR(A) that the taxpayer was an existing taxpayer and filed his return of income for tax year 2010 on 30-10-2010 which was deemed to be treated as assessment in terms of section 120 of the Ordinance and subsequent provisional assessment completed on 28-6-2011 is not maintainable in the eye of law. The learned CIR(A) being convinced with the I submissions made by the learned AR has annulled the provisional assessment completed under section 122C on 28-6-2011, after observing as under:--

"I have considered the arguments and perused the provisional order. It is observed that the appellant, is an existing taxpayer and has filed income tax return for the tax year 2010 on 30-10-2010 whereas provisional assessment has been framed on 28-6-2011 i.e. much after the filing of income tax return which is not sustainable in the eyes of law. Further order passed under section 122C is later in time. It is also a settled principle of law that where double assessment is made on the same income / transaction the assessment framed later in time is to be cancelled."

4. The learned DR assailed the above observation of the learned CIR(A) as contrary to law and facts of the case: It is contended by the learned DR that the learned CIR(A) has no power to annul the provisional assessment completed by the Assessing Officer under section 122 of the Ordinance. It is asserted by the learned DR that the taxpayer has failed to comply with the statutory notices issued by the taxpayer, therefore, the assessing officer was justified to make provisional assessment in the case. On the contrary, the learned AR supported the order passed by the learned CIR(A) and reiterated the submissions as made before him.

5. I have looked into the matter and after due consideration, I find that no exception can be taken to the treatment as accorded by the learned CIR(A) who has rightly annulled the provisional assessment completed under section 122C. Admittedly, the taxpayer obtained NTN certificate on 25-10-2010 and filed the return of income for tax year 2010 on 30-10-2010 which was deemed to be treated as assessment in terms of section 120 of the Income Tax Ordinance, 2001. In the presence of deemed assessment, the assessing officer proceeded to frame a provisional assessment for the same tax year 2010 on 28-6-2011 which tantamount to a 'double assessment' which is not permissible under the law as under such circumstances there is only recourse available to the Assessing Officer that is to resort to the provisions of section 122 of the Ordinance. The learned AR also produced before me a copy of the NTN certificate, return of income and wealth statement along with reconciliation statement which were placed on record. Under the circumstances, I find no reason to disturb the order passed by the learned CIR (A) which is hereby maintained.

6. Departmental appeal being filed without any merit or substance is hereby rejected.

HBT/18/Tax(Trib.) Appeal rejected.