1997 PLP 76 (PTD)

The petitioner through this writ petition under Article 199 of the Constitution seeks that the orders of respondents relating to assessment year 1994-95 be declared illegal, ab initio void anti having no legal effects. Briefly facts of the petition are that the petitioner filed his return of total income for the year 1994-95 declaring net income at Rs.75,000 under Self-Assessment Scheme, but was assessed under the normal law after the, issuance of mandatory notice under section 62 of the Income Tax Ordinance, 1979 at Rs.2,45 ,518; as the account books were rejected on the plea that the sales declared were totally unvouched. The petitioner filed a revision under section 138 of the Ordinance before the respondent No. 1, who vide his order dated 21-12-1995 dismissed the revision and confirmed the order of respondent No.2 on the ground that assessment order did not seem to suffer from any discrepancy calling for any remedy.

3. The learned counsel for the petitioner vehemently contended that respondent No.2, assessing authority made the assessment by making an addition of Rs.1,71,518 without pointing out any defect from the account books duly produced by the petitioner and the learned C.I.T. (Revision) did not give due consideration to this aspect of the case. The learned counsel for the department conversely controverted the arguments of learned counsel by contending as per entry in the order-sheet, the authorized representative of the petitioner had agreed that the account version was defective and respondent No. l was justified to make the assessment accordingly; even otherwise no obligation is cast on the income tax authorities to establish by positive evidence that the assessee's accounts are unreliable and that the estimate of income made by them is correct.

5. I have heard the learned counsel for both the sides at length and perused the record with their able assistance.

6. The question of law, which arises in the case in hand is, whether without rejecting or accepting the account books; the assessing authority can make the assessment.

7. The contention of the learned counsel for the department that no obligation is cast on income-tax authorities to establish by positive evidence that the assessee's accounts are unreliable, seems to be misconceived; the power of the assessing officer under the law is not a mere discretionary power but amounts to a statutory duty; it is not a purely subjective or arbitrary exercise of discretion and is required to be exercised judicially and adverse inference cannot be drawn unless the assessing officer is satisfied that the accounts have been suppressed by the assessee.

8. In case in hand; neither the assessing officer nor the learned C.I.T., (Revision) pointed out defects detected in account books nor finding has been given that the sales on cash system had not been properly maintained; the additions have been made without pointing out though the G.P. declared was accepted as reasonable.

9. Under the circumstances, the order of learned C.I.T. (Revision) is set aside and is directed to dispose of the revision after affording an opportunity to the petitioner to produce account books in support of his version, the petition is accepted to that extent and is disposed of accordingly. M.B.A/68/L Petition disposed of.