2013 PLP (Trib (PTD)

JAWAID MASOOD TAHIR BHATTI (CHAIRMAN).

Through the titled appeal the taxpayer has challenged the impugned order dated 4-6-2012 passed by the learned CIR(A) Multan on the following ground:-- "That notice under section 122(9) for amendment of assessment under section 122(1) read with section 122(5) of the Ordinance as alleged was never served upon the appellant; hence he has been condemned unheard which is against the maxim of audi alteram partem."

2. Briefly stated the facts of the case are that the taxpayer is an individual deriving income from steel bartan. The Taxation Officer passed ex parte order under sections 121/122(1) of the Income Tax Ordinance, 2001 (hereinafter called the Ordinance) computing income of Rs.25,75,918 by making addition of Rs.23,75,918 including deemed income of Rs.2,00,000 under section 120(1) of the Ordinance on the basis of information that three motor vehicles were registered in the name of the taxpayer. Being aggrieved the taxpayer approached the learned first appellate authority who vide an order dated 4-6-2012 rejected the appeal of the taxpayer for the reason that the taxpayer failed to explain his position. Hence the instant appeal by the taxpayer before the Tribunal.

3. Both the parties have been heard and relevant orders perused. The learned A.R. of the taxpayer contended that addition under section 111(1)(b) was made without verifying the ownership of the subject cars which shows that no definite information was available with the department. It was argued that the first vehicle in question was purchased under hire purchase agreement by Bank Alfallah Limited, Multan and the letter of authority issued to drive the vehicle and paying/ declaring in income tax return rental installment only, while the second vehicle in question as against engine number and chassis number declared by the Officer Inland Revenue neither the property of the taxpayer nor paying installments under hire purchase agreement. It was argued that proper opportunity of being heard has also not been provided to the taxpayer which is against the legal maxim audi alteram partem. The learned D.R. on the other hand opposed the arguments advanced by the learned AIR. and prayed for maintaining of the impugned order.

4. After hearing both the parties and going through the relevant orders, I am of the considered view that the addition under section 111(1)(b) has wrongly been made since no definite/correct information was available with the department because only one vehicle belongs to the taxpayer which was also obtained on lease under hire purchase agreement from bank Alfalah Limited, Multan and in this regard three installments were paid upto 30-6-2010, hence the same cannot be treated as investment. The second vehicle did not belong to the taxpayer for the reason that the department has failed to verify the ownership as well as the exact invested amount which means no definite information was available with the department as envisaged in section 122 of the Income Tax Ordinance, 2001. The above infirmities clearly establish that the proceedings of assessment are altogether illegal and not warranted by the law. Even otherwise, no proper opportunity of being heard was allowed to the taxpayer which is also against the fundamental rules of natural justice since no one can be condemned unheard as held in the reported judgment cited as 1994 SCMR 2232.

5. For the foregoing reasons, the appeal of the taxpayer is accepted and the orders passed by the learned CIR(A) is vacated and that of the Inland Revenue Officer passed under section 122(1) is hereby annulled.

6. Appeal of the taxpayer succeeds. CMA/42/Tax(Trib.) Appeal accepted.