2001 PLP (Trib (PTD)

"Perusal of assessment record reveals that neither case was selected as per laid down procedure in the Circular No. 5 of 1995, dated 11-7-1995, C. No.7(7)S.Asstt/93, dated 3-9-1995 and Circular No.9 of 1995 dated 3-9-1995 of S.A.S. for the year under appeal, nor assessment framed under normal law has been well-justified when viewed in terms of subsection (4) of section 59 of the Ordinance. It may be mentioned that acknowledgment receipt issued under section 59(1) was to be otherwise treated as assessment order and notice of demand for assessment year 1995-96, in accordance with the relevant provisions of law. Having regard to all the abovementioned facts, it is held that processing of case under normal, law was unjustified. It is, therefore, directed that declared income should be accepted under section 59A."

3. The parties have been heard and the relevant order perused.

4. A perusal of the above extract of the order of the learned C.I.T.(A) shows that he has misdirected himself while considering the facts of the case. As per the Assessing Officer the assessee did not qualify for benefit of S.A.S. at all. Thus, there was no question of selection or exclusion of the case. Similarly the provision of subsection (4) of section 59 of the Ordinance had no application if the case did not qualify for acceptance. The main ground given by the Assessing Officer for dislodging the claim of self assessment has not been considered by the C.I.T.(A) at all. The Assessing Officer has refused the claim of self-assessment after comparing with the assessed income of the assessment year 1994-95 i.e. preceding year. According to the Assessing Officer the income in the assessment year 1994-95 had already been assessed at Rs.508,772 on 30-4-1995 whereas the assessee filed the return on 30-9-1995 when such assessment was in field and was subsequently set aside on 19-5-1996. The plea of the learned counsel of the assessee is that the S.A.S. for the assessment year 1994-95 had been modified and immunity was allowed if the assessee enhanced the income by 25% as compared to the earlier year. Thus, according to the learned counsel of the assessee, the assessee filed a revised, return on 16-11-1994 declaring the income at Rs.35,297 in order to avail all the benefit of S.A.S. for the assessment year 1994-95. The learned counsel of the assessee has also filed a copy of an assessment order, dated 20-3-1997 for the assessment year 1994-95 passed under section 59A of the Ordinance whereby the net income of the assessee has been accepted at Rs.35,257 with the observation that it qualifies to be assessed under S.A.S. The learned counsel of the assessee has further stated that the revised return of the assessee could be deemed to have been accepted 'as on 30-6-1995 and he has referred the provision of subsection (4) of section 59 as well as decision of the Lahore High Court reported as 1993 PTD

332. Hence, the plea of the learned counsel of the assessee is that since the assessee's revised return for the assessment year 1994-95 was eligible for acceptance under S.A.S. the return for the assessment year 1995-96 based on such revised return had to be accepted under S.A. S.

5. A perusal of the Self-Assessment Scheme for the year 1995-96, as contained in Circular No.5 of 1995, shows that- a return would qualify for acceptance under the Scheme if the tax paid on the basis of the income declared for the assessment year 1995-96 was higher by 20% or more as compared with the tax payable on the basis of which last declared income or the last assessed income as explained in para. 10(d) whichever is higher (para.3(b) of the Scheme). Para. 10(d) of the Scheme reads as follows:

"Last assessed income' means the total income assessed for the latest assessment year, prior to the assessment year 1995-96 as it stands before the last date of filing of return -for the assessment year 1995-96, after adjustment of loss due to unabsorbed depreciation or otherwise carried forward from the earlier assessment year as modified in appeals/revisions/rectifications, etc." These provisions clearly shows that the comparison has to be made with total income assessed in the latest assessment year as it stood before the last date of filing of return, i.e. 30-9-1995. There is no dispute over the fact that .the assessment for the assessment year 1994-95 had been made on 30-4-1995 under section 62 of the Ordinance, such date being prior to 30-9-1995 the last date of filing of return in the assessment 1995-96. The claim of the assessee before us is that such assessment order was illegal as the assessee's return (revised) for the assessment year 1994-95 qualified to be accepted under S.A.S. as the return had been revised in terms of a Circular of the C.B.R. The learned A.R. of the assessee has also filed a copy of the assessment order under section 59A of the Ordinance indicating that the income for the assessment year 1994-95 had been accepted as declared since e the same was qualified to be accepted under S.A.S. However, such order for the assessment year 1994-95 as recorded under section 59A of the Ordinance is dated 20-3-1997 whereas the comparison of last assessed income had to be made with the income as it stood assessed on 30-9-1995.

6. Another plea of the learned A.R. of the assessee before us is that the Assessing Officer was not authorized to pass an order under S.A.S. after 30-6-1995 in respect of assessment year 1994-95 and thus the return for that year stood automatically accepted. The learned A.R of the assessee has relied on, an order of the Lahore High Court. In that case of Shoaib Bilal v. C.I.T., Faisalabad the assessee had filed a return under S.A.S. for the assessment year 1987-88 and such return showed income at 30% higher than the income in the earlier year. On 9-4-1990, the assessee was asked by the Assessing Officer to produce the record and the assessee pressed the claim of S.A.S. This claim was not accepted by the Assessing Officer against which -a petition was filed and relief was allowed by the High Court. However, the facts in the present case are different. The assessee. may be qualified for acceptance of the return under S.A.S. in the assessment year 1994-95 but no such vested right was conferred in the assessment year 1995-96. In the case relied upon by the learned A.R. of the assessee the assessee had claimed the immunity in the assessment year 1987-88. In the present case, the assessee is relying on the claim of the immunity for the assessment year 1994-95 i.e. preceding year. In the assessment year 1994-95, the income had been assessed at Rs.508,772 on 30-4-1995 which was set aside on 19-5-1996 and no further appeal was filed by the assessee against such setting aside. The assessee has also produced an order, dated 20-3-1997 recorded under section 59A of the Ordinance. However, this order cannot be considered to have vested a right on the assessee on 30-9-1995 i.e. before the order was passed itself.

7. It may be mentioned here that S.A.S. is a privilege/concession allowed to the assessees and it can only be availed within the framework of such Scheme. Even if the assessee had filed a revised return for the assessment year 1994-95 before 30-4-1995, i.e., date of order under section 62 of the Ordinance, indicated by the order under section 59A for the same year, this would not help in the matter of assessee's claim of S.A.S. in the assessment year 1995-96. There is no dispute over the fact that there was an order under section 62 in field on 30-9-1995 which was set aside do 19-5-1996. However, nowhere it has been established that such order under section 62 was illegal and that there was any direction by any authority, prior to 30-9-1995, that the return for the assessment year 1994-95 be accepted under S.A.S.

8. Thus, the assessee has failed to establish his claim for acceptance under S.A.S. in the assessment year 1995-96. The departmental appeal on this issue is found to be forceful. Hence, the order of the learned C.I.T.(A) is vacated and the matter is remanded back to him for adjudication of any other grounds in appeal that may have been taken before him.

9. The appeal succeeds to that extent. C.M.A./M.A.K./58/Tax(Trib.) Case remanded.