2021 PLP (Trib (PTD)

SHAHID MASOOD MANZAR, CHAIRMAN.

This appeal has been filed against the impugned Order No.1220 dated 10.12.2018 passed by the learned Commissioner Inland Revenue (Appeals), RTO, Peshawar whereby he dismissed appeal with following observation: - "Notices for hearing were issued multiple times on the address listed in AR;s appeal memo. but none attended in any of the hearings nor any application for adjournment was received. The grounds of appeal and impugned order were then carefully examined, but no concrete or compelling argument was found therein. Similarly, no supporting documents were available in appeal memo. Even otherwise, the treatment meted out to appellant by the assessing officer is quite reasonable and calls for no interference."

2. The appellant has now contended on the following grounds:- "..2. That the order of learned Commissioner Inland Revenue (Appeals) is liable to be canceled as order was passed without granting opportunity of being heard to the appellant. The Commissioner Inland Revenue (Appeals) is not justified to say that "notices for hearing were issued multiple times on the address registered in the AR's appeal memo". Only one notice was received for hearing on 21-11-2018 that was a gazetted holiday due to Eid Millad Un Nabi therefore exparty order is not maintainable hence liable to be cancelled.

3. That order is also liable to be cancelled as the same has been passed without jurisdiction.

4. That proceedings under section 161/205 of the Income Tax Ordinance, 2001 have wrongly been initiated and has wrongly been confirmed by the Commissioner Inland Revenue (Appeals) hence orders of the authorities below are liable to be cancelled.

5. That order passed under section 161 of the Income Tax Ordinance, 2001 is also liable to be cancelled as the reply filed as not been considered by the taxation officer.

6. That demand of tax under section 161 of Income Tax Ordinance, 2001 on account of payment of rent to the owner of the immovable property /building amounting to Rs. 102,600/- has wrongly been created and has wrongly been confirmed by the Commissioner Inland Revenue (Appeals) which is liable to be deleted.

7. That order is also liable to be cancelled as the same will tantamount to double taxation as once the tax has been deducted/deposited by the withholding agent i.e. M/s. Sefam (Private) Limited and tax has wrongly been charged twicely by the Taxation officer.

8. That the "Bareeza Home Expression" is brand name of the company namely M/s. Sefam (Pvt) Limited which is an existing taxpayer being assessed vide NTN # 1537192-1 in Large Taxpayers Unit, Lahore. Therefore, consequential order passed against the "Bareeza Home Expression" is liable to be cancelled.

9. That order passed under sections 161/205 of the Income Tax Ordinance, 2001 is also liable to be cancelled as "Bareeza Home Expression" is neither separate person nor a withholding agent.

10. That order is not maintainable and liable to be cancelled as Taxpayer Company M/s. Sefam (Private) Limited has already deducted/paid the tax on account of payment of rent of immovable property.

11. That order is also liable to be cancelled as the taxation officer was not justified to hold the "Bareeza Home Expression" "Being private education institute"."

3. On the other hand, learned DR vehemently opposed the contents of appeal by supporting the impugned orders of the authorities below.

4. We have heard both the parties and perused the impugned orders of the authorities below. The appellant mainly contends that he did not receive multiple notices as alleged in the impugned order of learned CIR(A), however, received only one notice for hearing on 22.11.2018, but unfortunately that was a gazette holiday i.e. Eid Meelad un Nabi (Salalah-o-Alaih-i-Wa-Aalihi-Wassalam), therefore, has been condemned unheard which is against the principle of natural justice. It is an established principle of law that nobody can be condemned unheard and no act or action which is detrimental against the right and interest of a person/persons can be passed without giving him prior notice and opportunity of hearing. The record of the case further transpires that the respondents have not treated the taxpayer fairly and justly because the learned CIR(A) while passing a non-speaking order in a casual manner himself admits that the taxpayer has not attended the hearing and nor submitted any supporting documents. We are of the view that taxpayer's plea carries weight. We hold that even issuance of a proper show-cause notice to a person is an essential ingredient of the legal maxim "audi alterm partem". The right of being issued with a show cause notice and the right of being personally heard are inseparable and inalienable rights of the taxpayer and cannot be denied under any circumstances. Resultantly, the impugned orders are vacated and the case is remanded back to the Assessing Officer for providing proper opportunity of hearing to the taxpayer and then pass afresh order in accordance with law. The taxpayer is also directed to present his case along with documentary evidence before the Assessing Officer and avoid from unnecessary adjournments.

5. The appeal is disposed of accordingly. SA/94/Tax (Trib) Case remanded.