2014 PLP 2063 (PTD)

SHAHID JAMIL KHAN, J.

This judgment shall also decide I.T.A. No. 55 of 1999; for having arisen out same order under similar facts.

2. The appeals under section 27(1) of the Wealth Tax Act, 1963 ("the Act") are directed against order dated 31-8-1999 passed by the Income Tax Appellate Tribunal ("Appellate Tribunal"), proposing eleven questions of law on single legal preposition. For the sake of brevity, following question of law is re-casted for answer, in view of judgment by Apex Court in Commissioner of Income-Tax Company's II, Karachi v. Messrs National Food Laboratories (1992 PTD 570):-- "Whether under the facts and circumstances of the case, the Tribunal was justified to annul the assessment for the reason that Assistant Commissioner is not an Authority under section 2(1)(10) read with Section 8 of the Wealth Tax Act, 1963?"

3. Brief facts are that an assessment was made for the Assessment Years 1994-95 to 1997-98 vide order dated 26-12-1997 under section 16(3) of the Act. On being assailed before Appellate Additional Commissioner, appeals were partly allowed. Cross appeals were filed before Appellate Tribunal. The Appellate Tribunal preferred to decide the appeals, against appellant department, on technical ground of jurisdiction. It was held that Assistant Commissioner (assessing officer) was neither arrayed as an Authority under the section 8, nor was included in the definition of Deputy Commissioner under section 2(1)(10) of the Act.

4. Learned counsel for the appellant submits that this question has already been decided in favour of department in Tax Appeal No.56 of 2006. Learned counsel for the respondent has not controverted the assertion, however, submits that cases may be remanded to Appellate Tribunal for decision on merits.

5. Heard, record perused.

6. On perusal of the order in Tax Appeal No.56 of 2006 it is revealed that question answered in that appeal is not identical to the legal proposition in this case; benefit of the section 45A of the Act was given by holding that typographical mistake of writing Taxation Officer in place of Special Officer could not vitiate the proceedings. The re-framed question (supra), is on different premise.

7. Under section 16 of the Act, assessment could be made by Deputy Commissioner. The Deputy Commissioner was arrayed as one of the Wealth Tax Authorities, followed by Wealth Tax Inspectors, in section 8 of the Act. Assistant Commissioner was not listed as Authority in this section. The word "Deputy Commissioner", was defined in section 2(1)(10) of the Act, in following words:- "Deputy Commissioner" means a person appointed to act as a Deputy Commissioner of Wealth Tax, a Wealth Tax Officer, a Special Officer and a Tax Recovery Officer." (emphasis supplied)

8. Under subsection (1) of the section 2, meanings assigned to the word "Deputy Commissioner" were to be read in section 16 (for making assessments) and in section 8 of the Act. Examination of the definition, ibid, shows that it meant 'a person appointed to act as Deputy Commissioner' which could be a 'Wealth Tax Officer', a Special Officer and a Tax Recovery Officer. It is important to note that designations, mentioned in the definition, are not arrayed in the list of Authorities under section

8. Wealth Tax Officer, as used in the definition, has a wider connotation and includes Assistant Commissioner in its fold. Principle of 'ejusdem generis' if used as a tool of interpretation would also allow to read Assistant Commissioner in the definition of Deputy Commissioner. In operative part of the definition clause, the phrase; 'a person appointed to act as Deputy Commissioner' also clarifies the confusions. As Assistant Commissioner was appointed to act as Deputy Commissioner, therefore, assessment order passed by him under section 16(3) of the Act was valid. Finding of Appellate Tribunal, in order under question, lacks collective reading of relevant provisions. The word 'Deputy Commissioner' was read in isolation and was misconstrued as a designation simplicator. Despite reproducing the definition of Deputy Commissioner in its order, Appellate Tribunal was swayed by the fact that Assistant Commissioner was not listed section 8 of the Act. Appellate Tribunal recorded concession of Departmental Representative that there was a lacuna in law. It may be observed; any concession on erroneous interpretation of law shall not operate as estoppel, as there is no estoppel against law.

9. For the above reasons, our answer to the legal proposition, in shape of reframed question, is in negative. The appeals are decided in favour of appellant department.

10. As Appellate Tribunal had not decided the appeals on merits, therefore, the appeals shall be deemed pending before it for decision afresh.

11. Office shall send a copy of this judgment under the seal of the Court and the signature of the Registrar to the Appellate Tribunal Inland Revenue as per section 27(5) of the Wealth Tax Act, 1963. MH/C-14/L Order accordingly.