1987 PLP (Trib (PTD)

Date of hearing: 5th July, 1987. This appeal is directed against the order of learned Appellate Assistant Commissioner recorded by him on 19th March, 1983 relating to assessment year 1981-82.

2. The brief facts giving rise to it are that the appellant, a lady doctor, owned a clinic during the relevant year and declared her income from it at Rs.18,820/-. She also claimed her expenses at Rs.27,040/- which ultimately resulted in net loss of Rs.18,

820. The Income Tax Officer, however, estimated .her income from her clinic at Rs.25,000/-. Moreover, he further estimated her income from OPD at Rs.36,000/- and thus estimated total income at Rs.61,000/- as against the declared income of Rs.18,820/-. Applying GP rate of 75% and allowing expenses of Rs.20,790/- the Income Tax Officer estimated the income at Rs.24,960/-. It appears that assessment was framed on 29th April, 1982. Having been aggrieved and dissatisfied the appellant went up in appeal, but the learned Appellate Assistant Commissioner reduced OPD receipts from Rs.36,000/- to Rs.30,000/- and otherwise confirmed the order of Income Tax Officer. The appellant feels aggrieved and has come up in second appeal.

3. Mr. Rehmat Ali Shaikh, the learned counsel for the appellant firstly contended before me that the hearing notice was served on the appellant for 29th March,1982. According to the learned counsel, none could attend on this date. However, the Income fax Officer instead of proceeding ex parte decided to conduct an inquiry through his Inspector and then on 29th April, 1982 framed ex parte assessment. The learned counsel submitted that the order of Income Tax Officer was not sustainable in law firstly because no notice for 29th April, 1982 was served on the appellant and, secondly, because the appellant was not confronted with the report of the Inspector. Mr. Abdul Ghani Channa, the learned Departmental Representative, however, supported both the officers below.

4. I have heard both the learned counsel for the appellant as well as learned Departmental Representative. I think that miscarriage of justice has been caused in this case. It was the duty of the Income Tax officer to issue fresh hearing notice for April 29, 1982. It was also imcombent upon him to confront the appellant with the report of the Inspector. Since he has failed to comply with both these mandatory provisions of law, I feel very much constrained to set aside the impugned order and send the matter back to Income Tax Officer for fresh assessment.

5. I, therefore, allow this appeal and after setting aside the impugned order send the matter back to Income Tax Officer with the direction that he should frame fresh assessment according to law. M.B.A/414/T Appeal allowed.