2002 PLP 467 (PTD)

NASIM SIKANDAR, J.

This further appeal under section 136 (since amended) of the Income Tax Ordinance, 1979 assails an order of the Lahore Bench of the Income-tax Appellate Tribunal recorded on 13-5-1998.

2. The assessee-respondent is an individual and derives income from sale of cloth. For the assessment years 1995-96 and 1996-97 the Assessing Officer framed a common assessment order on 16-4-1997 after estimating his sales and subjecting them to a rate of 15%.

3. Learned C.I.T. (Appeals) on 24-7-1997 reduced the estimated income in the two years involved from Rs.1,55,000 and Rs.1,84,500 respectively to Rs.1,00,000 and.Rs.14,000.

4. On further appeal the learned Tribunal by way of impugned order found that 'the assessee fulfilled the requirements of Self Assessment Scheme notified for the year 1996-97 through Circular No.4/96 dated 1-7-1996. Therefore, the return filed for'the year 1996-97 was directed to be accepted. As far the assessment year 1995-96 it was partly agreed that the assessee had worked for only one month i.e. June, 1995 and therefore, the assessment as framed appeared harsh which was made only after one default in appearance. Therefore, the assessment in the year 1995-96 was set aside for its reframing afresh in accordance with law.

5. According to the learned counsel for the Revenue the aforesaid order of the Tribunal gives rise to following questions of law:

"(1) Whether according to tire facts and circumstances of the case the Income-tax Appellate Tribunal was justified to accept the return under Broad Based Self-Assessment Scheme of a new taxpayer for the assessment year 1996-97 when it did not as per Central Board of Revenue's Letter No.C.No.7(27) S. Asstt/96, dated 27-11-1996? (2) Whether according to the facts and circumstances of the case, the learned Income-tax Appellate Tribunal was justified to decide the issue without any proper discussion and evaluation of the provisions relating to (he requirements for acceptance under Broad Based Self-Assessment Scheme with reference to the case of new taxpayer?

6. Having heard him at pre-admission stage, we are of the view that no interference with the impugned order in the form of answer to the aforesaid question is warranted. In the first instance the claim of the learned counsel for the petitioner that respondent being a new assessee could not file a return under Self-Assessment Scheme as per the aforesaid circular is not correct. The assessment order, first appellate order a5 well as the impugned order of the Tribunal certainly indicate that the petitioner was not a new assessee insofar as it had already filed a return for the year 1995-96 it had already been though indicating business done only for one month. Therefore, it is not correct to suggest that the respondent being a new assessee could not avail Self-Assessment Scheme notified for the year,.

7. There is another reason for our refusal to interfere. In a number of recent judgments we have declined to answer a question which primarily revolves around the eligibility of an assessee to avail Self Assessment Scheme in a particular year.

8. Thirdly we are of the view that the questions as framed for our answer are not of any substance. The Hon'ble Supreme Court of Pakistan in re: The Lungla (Sylhet) Tea Co. Ltd. v. Commissioner of Income-tax, Dacca Circle, Dacca (1970 SCMR 872) held that every question of law need not be referred to High Court and that it was only a question having some substance which needed to be so referred.

9. The questions as framed above are neither of law nor have arisen a substantial legal controversy between the Revenue and the assessee.

10. Learned counsel for the Revenue if still is of the view that the (C Tribunal ignored the provisions of the aforesaid circular while holding the assessee to be eligible in terms thereof can still approach them under section 156 of the Income Tax Ordinance, 1979 for rectification.

11. Disposed of in the above terms. C.M.A./M.A.K./C-131/L Order accordingly