2001 PLP 1371 (PTD)

NASIM SIKANDAR, J.

This is a case stated by the Lahore Bench of the Income Tax Appellate Tribunal under section 136 of the Income Tax Ordinance, 1979. The following questions have been framed for our consideration and reply:

"(1) Whether on facts and in circumstances of the case the learned Tribunal was justified in holding that a Revised return filed under section 57 would be deemed to be an amendment of the return under section 55 and covered by the provision of section 59(1) of the Income Tax Ordinance, 1979. (2) Whether in the light of para. 5 Circular No. 11 of 1981, dated 6-8-1981 for Self-Assessment Scheme 1981-1982 the learned Tribunal was justified to set aside orders of the Officers below and in directing that the assessment should be made under section 59(1) if the case qualified to be assessed as such."

2. According to the statement of the case the assessee an unregistered firm on 23-9-1981 filed a return under self-assessment scheme for the year, 1981-82. On selection of case for detailed scrutiny under para. 2 clause (6) of C. B. R. Circular No. 13, dated 4-11-1981 the assessee revised his return on 28-12-1981. In the revised return total income was disclosed at Rs. 38,500 as against Rs.35,000 earlier declared in the original return. The Assessing Officer refused to allow, immunity claimed on account of having shown 20% increase in income. In his view the return having been revised after the aforesaid circular it could not be accepted. Accordingly on usual proceedings net income for the years was determined in return at Rs. 62,

217. The assessee failed before the First Appellate Authority: However, a single Bench of the learned Income Tax Appellate Tribunal remitted the case to the Assessing Officer with the direction that return originally filed should be examined if it qualified under section 59(1) of the Ordinance. Earlier the learned Member held the view that the revised return under section 57 was only an amendment to the return earlier filed under section 55 and, therefore, it should be deemed to have been filed under that section. Although he agreed that it was only section 55 which had been mentioned in section 59(1) of the Income Tax Ordinance yet in his view in certain situations where a person had earlier filed a return, its subsequent revision could be deemed to be an amendment of the original return and, therefore, could conveniently be taken to have been filed under section 55.

3. Heard the learned counsel for the Revenue. His argument is cogent and relevant that only a return under section 55 qualified for acceptance in accordance with the self-assessment scheme issued for the relevant year. He states that the express mention of section 55 impliedly excluded the returns filed under any other section of the Ordinance. Also refers to the explanation added to subsection (1) of section 59 by Finance Act (1 of 1985); through that explanation legislature declared that a return of total income furnished under section 55 did not include a return of total income furnished under section

57. Therefore, we are of the view that the learned Member was not justified in interpreting provisions of section 59 under which no revised return of total income could be filed.

4. In the present case the said provision of the Ordinance was interpreted by the Revenue in the light of para. 5 of Circular No. 11 of 1981, dated 6-8-1981 through which the self-assessment scheme for the year, 1981-1982 was notified. In that para. it was clearly provided that "cases selected for detailed scrutiny will not be taken out of this list on the basis of revision upwards of income." It hardly needs emphasis that acceptance of return under section 59 of the Income Tax Ordinance is qualified by the provisions of the scheme notified for such purpose in respect of a particular assessment year. The provisions of section 59 clearly laid down that return will be accepted only if it qualified for acceptance in accordance with the provisions of a scheme of self-assessment made by the Central Board of Revenue for that year. After the assessee had been appraised of the selection of his case for detailed scrutiny, his revision of the return already filed clearly disentitled him to the benefit of the scheme in the light of the said Circular No. 11 of 1981. Therefore, the learned Member of the Tribunal was not justified in holding that revised return under section. 57 could be deemed to be an amendment of the return earlier filed under section

55. Particularly to view of the aforesaid para of the Circular notifying self-assessment scheme for the year under consideration. The findings earlier recorded by the Assessing Officer while .rejecting the claim for immunity being fully supported by the aforesaid para. of the self-assessment scheme the learned Member was also not justified in setting aside the assessment order directing for re-examination of the case if it qualified for acceptance under section 59 of the Income Tax Ordinance. The remand order was accordingly illegal and unjustified. Therefore, we will, return a negative answer to both the aforesaid questions. M.B-A./C-50/L Reference answered.