1997 PLP (Trib (PTD)

3. After the above decision the case was taken up. Notices under section 61 were issued. Compliance to which was partly made and when the assessee nor his representative failed to appear on the date for which ad inurnment had been sought the assessing officer repeated the earlier action i.e. added the perquisites of Rs.47,100 to the declared income. This action was challenged in appeal where the action of the Assessing Officer was upheld on the observations: "From the above judgment it is clear that even if the assessee was receiving salary and allowances from one company and was serving as a Director in other Companies where no salary and allowances were being paid, the mere fact that he was a Director in other companies render him ineligible for the perquisites allowance because being a Director in more than one company entails attending Board's meeting etc. and therefore he could not be a whole time Director in one company".

4. In the charge year 1993-94, the Assessing Officer proceeding on the action taken for 1992-93 and the decision of the CIT(A) (referred to above' again added the perquisites. The appellant went into appeal where the first Appellate Authority, proceeding and relying on the history of the case and the second decision pertaining to the charge year 1992-93 upheld the order of the assessing officer of the addition of perquisites to the declared salary income.

5. The learned A.R. pleaded that the action of the Authorities below was not justified and the charging into tax of the perquisite for the reason that the assessee happened to be a Director in another company was not called for During the course of proceedings it was submitted that the appellant was a full and whole time Director in M/s. New Light House (Pvt.) Limited, Lahore, only and in the case of the other company i.e. Star Industrial Gases (Pvt.) Ltd., the said concern was dormant and the question of any part-tune or whole time working did not arise. Neither was the appellant in receipt of any pay nor perquisites from the second company (Star Industrial Gases (Pvt.) Limited). It was, therefore, pleaded and main tained that the action of the Authorities below was not justified. The assessee through his A.R., also took the plea that the return of income filed for the charge year 1992-93 should have been accepted under the Self-Assessment Scheme as it fulfilled the required and requisite conditions.

6. The learned D.R. on the other hand supports and upholds the action taken by the Authorities below and is of the view that as the assessee himself had shown to be a Director of two companies, therefore, the addition of perquisites to the declared salary income was justified. It did not call for any other interference.

7. The two points of view explained and maintained before the Bar have been considered and examined. In respect of the charge year 1992-93 there have been two rounds of appeal. In respect of the first appeal it has become infructuous as the order set aside by the CIT(A) has been given effect. It accordingly stands dismissed.

8. In respect of the second appeal for 1992-93 the appellant's submission that the return qualified for acceptance under section 59(1) has been considered and examined. In the first case when the order under section 59(1) was originally passed and the assessee preferred an appeal this issue was not raised. Neither it had comprised the grounds of appeal when this was agitated before the Tribunal. The assessee had himself declared in the return to be a Director of more than one company. Anyhow, according to the conditions of Self-Assessment Scheme for 1992-93 the provisions of para. 3(b)(ii) were attracted. He (the I.T.O.) assessed the income under section 59(1) after making adjustments under the provisions of section 59(3). The-return, therefore, did not qualify for acceptance under Self-Assessment Scheme:

9. The appellant maintains that he did not work at all in the case of the second company and, therefore, his case was distinguishable from the cited cases relied upon by the Department. Further, the Department had nowhere specifically obtained his point of view on this issue nor confronted him with a notice under section

62. The fact, however, is acknowledged that notices under section 61 were issued but these could not be substitute for a specific notice under section 62 where the point under consideration could be examined, discussed and decided. In the absence of a reasonable opportunity afforded to the assessee the decisions of the Authorities below were not called for.

10. On these submissions we would concur and agree with the appellant and, therefore, set aside the additions on account of perquisites for charge years 1992-93 and 1993-94 with the directions that the onus is on the appellant to substantiate and prove that he did not work at all in the case of the second company and that his case is distinguishable from the decisions cited/relied upon, reported as (1988) PTD 563 anti 1990 PTD (Trib.) 321 by the Department. C.M.S./399/Trib. Appeals accepted.