2008 PLP 1125 (PTD)

8. Regarding the responses of the complainant to the questions raised about the details and nature of receipts declared in the statement under section 143-B as well as in the Return of Income under section 55, narrated in the complaint from para. 5.1 to 11 the only comments offered by the respondent are as under: 5.1 "Denied. The assessee was initially confronted on the lines of history of the case. The analysis unfolded the nature of receipts being commission as such final legal treatment was accordingly given in the order". 5.2 "It is a matter of record and needs no comments". 5.3 "It is a matter of record and needs no comments". 5.4 "It is a matter of record and needs no comments". 6.1 "It is a matter of record and needs no comments". 6.2 "It is a matter of record and needs no comments". 6.3 "It is a matter of record and needs no comments". 7. "It is a matter of record and needs no comments". 8. "It is a matter of record and needs no comments". 9. "Denied. The order has been passed in a spending manner as per law and facts". 9.1 "It is a matter of record and needs no comments". 10. "Denied being baseless. During the whole proceedings 3 officers were transferred. The entire entries on the order sheet are also made by 3 different assessing officers".

9. The late service of the order was necessitated due to the under mentioned reason:

"The notice server lost sight of the service of the same due to rush of work, his leaves for operation of his eye and accidental death of his nephew who was brought up by him. However, through this late service, no prejudice has been caused to the assessee as explained earlier. Denied. The assessee order comprises of 9 pages and contains Factual/legal discussion/rebuttal. The proceedings have been concluded within the four corners of law. It has been established that the exact nature of assessee's entire receipts was commission and tax was deductible thereon as per law. The same squarely falls under the presumptive tax regime for the year".

10. Mr. Arshad Naeem Khan, A.R of the complainant and Mr. Masood Jahangir and Mr. Kaleemuddin, Tax Officer (B-18) and (B-17) respectively, for the respondent have been heard. Perusal of details, evidence and explanations filed by the complainant during the course of assessment proceedings clearly show that complainant received commission from Airlines on Air freight of cargo of shippers booked for the Airlines which was declared in statement under section 143-B both in assessment year 2000-01 as well as in assessment year 2001-02. The complainant in the course of delivering the booked cargo to the Airline, performed certain services on behalf of shippers such as payments of documentation charges, watchman charges, Fuel was Risk surcharges, E.D.S. & Excise Duty, customs clearance, warehousing, transportation/ cartage and wages/overtime of loading/unloading labour etc. Bills were raised for reimbursement of expenses plus charges for complainant's services. The failure of the respondent not to comprehend the nature of such receipts and his inability to distinguish such proceeds from the commission receipts proves his incompetence and ineptitude in the discharge of his duties and responsibilities or at the least proves his inattention to the evidence, details and explanations as well as neglect and disregard for the practice of assessment of such receipts followed by the Department in complainant's own case in assessment year 2000-01. Such intention, neglect, incompetence and ineptitude in discharge of duties and responsibility has been defined as maladministration under clause (ii) of subsection (3) of section 2 of F.T.O. Ordinance XXXV of 2000. Receipts amounting to Rs.135,938 included in the declared Service Revenue amounting to Rs.6,553,793 in the return of Income filed under section 55 was not properly explained and identified during the course of assessment proceedings. The complainant could be called upon to explain it further with documentary evidence through a specific query. It proves that proper opportunity was not provided before determining that the receipt was in the nature of commission. It has been explained during the course of personal hearing that the complainant, Messrs Trans Global Logistics Pakistan (Pvt) Limited have entered into an arrangement with Messrs Tower Group International, Atlanta, USA to share equally the gross profit earned on shipping space acquired by the complainant at a port of loading in Pakistan for the cargo booked and billed by the later. Messrs Tower Group International collect the proceeds of sale of space; pay the cost of space bought and share the gross profit on such ventures equally. Supporting' documentary evidence comprising copies of Bills of Lading, Cost Schedule and debit Notes have been submitted to prove the veracity of the declared nature of such receipts. The denial of allegation supported by affidavit to refuse inspection of file cannot be relied upon in the absence of any counter affidavit of respondent.

11. The C.B.R. Circular No.15 of 1958, referred to in support of the plea that the last order sheet No.9 was confidential, bears C.No.26(17)-I.T.P./58 dated October 8, 1958 and confirms that following instructions issued vide Circular No.32-C(2)I.T.-28, dated 28-3-1928 are still in force and should he followed: "The assessee cannot be herd to have any right to inspect his assessment file either in person or through a representative. There may be cases in which it would be unreasonable to refuse the assessee or his representatives access for the purpose of reference to original documents filed in the case, of which the assessee is entitled to have copies, specially if they are very bulky (e.g., balance sheets), or such that a copy would not serve the purpose completely."

12. Thus the allegation of maladministration on account of arbitrariness in refusing to issue copy of 9th order sheet and even disallowing its inspection is invalid. However, all other matters alleged in the complaint relate to inattention, neglect, incompetence and inaptitude of the respondent in discharge of his duties and responsibilities and departure from established practice and procedure for which no valid reason could be offered by the respondent. Since the matters do not relate to assessment of income et cetera, the instant complaint does not fall in the ambit of bar on jurisdiction envisaged under clause (b) of subsection (2) of section 9 of the F.T.O. Ordinance, XXXV of 2000, hence objection is overruled.

13. It is now recommended. (i) That the Commissioner does conduct written counselling of concerned Taxation Officer on the weak aspects of his performance. (ii) That the Commissioner in his own discretion takes cognizance of the apparent error in the assessment order in consequence of identified maladministration in the process employed by the Taxation Officer during the examination of evidence and proceed under section 122A suo motu to allow such relief to the complainant as he finds due on facts apparent from record. (iii) Compliance is reported within 45 days. M.I./268/F.T.O. Order accordingly.