TANVEER BROTHER OIL DEALERS vs THE COMMISSIONER OF INCOME-TAX

ORDER

MUHAMMAD AFZAL LONE, J.--This order shall dispose of P.T.R s. Nos. 1, 2 and 3 all of 1989 as these petitions are directed against the Tribunal's same order and common arguments have been advanced therein.

2. The facts are that for the assessment years 1982-83, 1983-84 and 1985-86 the, petitioner's assessm ents originally made, were reopened under Section 65 of the Income-tax Ordinance, 1979 and his total income was re-assessed by the I.T.O. On 30-4-1986. In the course of the re- assessm ent proceedings the petitioner offered to be assessed on the basis of a compromise at certain figures to which the I.T.O. Agreed subject to the approval of the' Commissioner of Income- tax. It appears that the Commissioner of Income-tax did not approve of the agreed assessment.

Consequently, the I.T.O. Dealt with the case on merits and estimated the income for the years aforesaid at Rs. 3,93,050, Rs. 5.68,330, and Rs. 6,13,620 respectively.

3. The petitioner challenged these assessments through appeals before the Tribunal and took up the stand that the I.T.O. Having himself accepted the petitioner's proposal as being reasonable, the approval of the Commissioner Income-tax was uncalled for; the restriction imposed by him on his power, was not countenanced by law. As borne by its order dated 2-11-1987., this argument did not find favour with the Tribunal. The petitioner then moved an application under section 136(1) requiring the Tribunal to refer the following questions of law to the High Court said to have arisen out of its order aforesaid:

(i) Whether the learned Tribunal was justified in holding that the learnedIncome-tax Officer has conditional power to frame an assessment?

(ii) Whether the learned Tribunal was justified to hold that the Assessing Officer could put restrictions on his own powers not provided in law?

(iii) Whether the learned Tribunal was justified in holding that the contracts entered into by the learned Income-tax Officer are restricted by self imposed restrictions?

(iv)Whether the learned Tribunal was justified in holding the illegal qualification attached with the contract as sufficient to rescind the acceptance given by the Income-tax Officer having absolute power to frame assessm ent?

(v) Whether the learned Tribunal in the facts and circumstances of the case was legally justified to uphold that no legal contract enforceable came into existence by virtue of the proposal and conditional acceptance by the Income-tax Officer on 22-4-1986?

4. It is discernible from the record that the Tribunal was of the view that the I.T.O. Had to proceed under section 62 and make the assessment on the basis of the material before him. As the offer made by the petitioner to the I.T.O., to be assessed at an agreed figure, was not finally accepted, such a factual situation did not give rise to any proposition of law. The application was thus dismissed on 4-8-1988. The petitioner has now come to this Court under section 136(2) of the Ordinance.

5. We have heard the learned counsel. He reiterated the arguments advanced by him before the Tribunal. The reasons which weighed with it in rejecting the petitioner's contention, as embodied in the appellate order dated 2-11-1987 are:-- ---...No doubt, the I.T.O., being the assessing officer, was competent to accept or reject the proposal. But he was also at liberty to accept the proposal with a condition. Mere fact that the condition attached by the I.T.O. Was in regard to the approval of the learned C.I.T. Does not make the condition as illegal on the ground the C.I.T had no authority to interfere in the assessment. The ITO could put restriction on his own powers. The condition was not attached because the law required is but it was attached because the I.T.O. Himself wanted it and there was no bar for such a conditional acceptance on the part of the I.T.O------ We entirely agree with the view taken by the Tribunal. In the Ordinance, there is no room for an agreed assessm ent and the I.T.O. Had to assess the petitioner's total income, on the strength of the material on the record and such other evidence on specific points, as required by him. If the I.T.O.

Chose to follow a manner of assessment extraneous to the Ordinance he could well voluntarily impose on himself the condition as to .The Commissioner's approval of such an assessment. It is clear to us that the Assessing Officer did not finalize the agreed assessment and the approval of the Commissioner Income-tax was the condition precedent for such acceptance. The proposal for agreed assessm ent forwarded by the petitioner to the Commissioner, therefore, did not confer any right on the petitioner. His stand is utterly misconceived. It is well settled that only a substantial question of law can be referred to the High Court. The Tribunal's order does not give rise to any such question. No ground for interference. Dismissed in limine.