MUHAMMAD INAYATULLAH CHEEMA Versus Sardar ALI RAZA MASOOD QAZILBASH

The petitioner is an Advocate and an income-tax assessee as such. He filed a return of income for the year 1990-91 declaring a total income of Rs.96,650 as the matter was not covered by the Self- Assessment Scheme, the petitioner was issued a notice under section 61 of the Income Tax Ordinance, 1979. He filed this wealth statement declaring ownership of 1/4th share in the 1st Floor of a property located at Mozang Road, Lahore. Further information was also provided. The assessment was completed by the Income Tax Officer at Rs.4,83,550. The order was passed -on 29-6-1993. The petitioner filed an appeal which was allowed by the Commissioner (Appeals) on 3-5-1995. The Commissioner concluded that the petitioner had not been provided a sufficient opportunity to explain while making the additions in his income. He remanded the case to the respondent. The order of the Commissioner was further challenged by the petitioner by filing an appeal before the Income Tax Appellate Tribunal on the ground that a notice under section 13(1)(d) of the said Ordinance had not been issued. While the appeal was so pending before the said Tribunal the respondent started assessment and issued notice to the petitioner who replied that the matter is pending before the said Tribunal. The respondent, however, proceeded to complete the assessment of the petitioner reiterating the earlier assessment order. The learned counsel for the petitioner contends that the respondent has acted without lawful authority in completing the assessment when the appeal against the order of the Commissioner is pending before the Tribunal. He relies on the case of Mst. Inayat Begum v. Commissioner of Income Tax, Zone-B, Lahore 1985 PTD 375. No one has turned up for the respondent although he is represented by Mr. Zia Ullah Kiani and Mr. Shahabaz Butt, Advocates whose names stand listed in the Cause List for today but no one has turned up despite repeated calls. The respondent is, therefore, being proceeded ex parte.

2. The averment that appeal (Annex-J) had been filed against the order, dated 7-6-1995 of the Commissioner (Appeals) and that the respondent had been intimated vide a letter, Annex-K-I, is supported by accompanying affidavit of the petitioner. The learned counsel states at the bar that the appeal was filed and is still pending. In the said case of "Mst. Inayat Begum", being relied upon by the learned counsel, the Income Tax Appellate Tribunal set aside the assessment and referred the question of law to this Court. It was contended on behalf of the assessee with reference to a judgment of the Privy Council in the case of "Commissioner of Income Tax, Bombay Presidency and others v. Khaim Chand Ram Das (1938 (V.I.6) ITR 414) that ass6sstnent once made does not come to an end until proceedings with regard to assessment have finally been concluded and since the matter of first assessment is still pending, the second assessment order is illegal. The contention found favour with the Court and it was held that till such time that the Reference is pending the Income Tax Authorities have to wait for the result. To my mind, the said judgment in the said case does support the present petitioner inasmuch as the matter of first assessment 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.

No order as to the costs.

S.A.K./M-1023/L Order accordingly.