2002 PLP 1468 (PTD)

NASEEM SIKANDAR, J.

In this further appeal the appellant is a private limited company and at the relevant time derived-income from import and supplies. For the assessment year 1995-96 it was required to file a statement under section 143-B of the Income Tax Ordinance, 1979 on or before 20-10-1995. On the alleged failure of the assessee to file that assessment the Assessing Officer proceeded to frame a regular assessment under section 62 of the Income Tax Ordinance, 1979 on 18-12-1996. Thereafter, by snaking resort to penalty provision as contained in section 108 of the Ordinance he proceeded to impose a penalty of Rs.84,800 at a rate of Rs.200 per day for 414 days default. The initial penalty of Rs. 2,000 was also added to claim the aforesaid sum.

2. The assessee failed before the First Appellate Authority. The Tribunal on further appeal also discarded and refused to accept the postal receipt issued by the Postal Authorities receiving letter containing the name and address of the concerned Assessing Officer. The learned First Appellate Authority was of the view that receipt of the statement could not be established from RCIT Office while the Tribunal found that it was not a practice of the Income Tax Department to receive returns/statement through post in the manner it was alleged to have been sent by the assessee.

3. According to the assessee following questions of law have emerged out of the impugned order of the Tribunal, dated 30-5-1998:

"(i) Whether the learned Income Tax Tribunal was justified to reject the acknowledgement slip (A.D.) issued by the postal authority while declaring it improper document? (ii) Whether the imposing of penalty without considering the Letter No.3678/178, dated 27-2-1997 was proper and according to law? (iii) Whether the filing of statement under section 143-B before the Regional Commissions of Income Tax Office could be considered proper and in accordance with law?

4. After hearing the learned counsel for the parties and on going through the postal receipt issued by the concerned Departmental Authorities we are of the view that it sufficiently supports the case of the assessee. Once the assessee had supported the claim on the basis of a receipt issued by the Postal Authorities burden of proof shifted on the Department to rebut that no such statement was ever sent through post as alleged. Instead the Assessing Officer relied upon the reply of his alleged query made the staff of RCIT Office if such statement had ever been received in that office. The assessee in response to a notice, dated 19-2-1997 took up the plea that the required statement was submitted to RCIT Office which was well in time. A photo copy of the postal receipt was also submitted with the reply. Neither the Revenue Authorities nor the learned Tribunal ever disputed that Postal Authorities did not indicate the receipt of a registered letter by them. Instead they attempted to discard the receipt on the basis which were totally irrelevant to the fact in hand. Admittedly the postal receipt was issued on receipt of a letter addressed to RCIT. Therefore, a presumption did arise that the said letter must have reached its destination in usual course of business.

5. That being so we are of the view that after discharge of the initial burden by the assessee the Revenue could not bring home in clear terms that no statement under section 143-B of the Ordinance was ever sent to the Revenue:

6. Resultantly, this appeal is allowed. The aforesaid penalty under section 108 of the Ordinance imposed shall stand cancelled. Q.M.H./M.A.K./N-167/L Appeal allowed.