2005 PLP (Trib (PTD)

Rs. 3,28,81,605 According to Assessing Officer the share of investment in the above mentioned property as declared by the co‑owner Mr. Iqbal Ahmed, in his Income‑tax/Wealth tax is record as under:‑‑‑ Paid by Mr. Iqbal Ahmed Rs. 1,52,97,700 Paid by Mr. Jabbir Moti Rs.1,75,83,905 According to Assessing Officer since the investment in the above mentioned property has not been declared by the assessee in his income -tax record/break up of wealth filed by him as on 30-6‑1995, therefore, the said investment of Rs.1,75,83,905 was treated from undisclosed sources liable to be added in income under section 13(1)(aa) of Income Tax Ordinance, 1979, read with section III of Income Tax Ordinance, 1979. On the basis of information received from the Assessing Officer of co‑owner i.e. DCIT Circle E‑11 zone E vide his letter No. DCIT/CIR E-11/ZE/1997‑98‑475, dated 13‑5‑1998 received by the Assessing Officer of the appellant (ACIT Cir. C‑17 Zone C) while passing order under section 63 for the impugned assessment year 1995‑96 has accepted the valuation of plot declared by the appellant. The assessment was finalized under section 63 after making the addition of Rs.175,83,905 under section 13(1)(aa) being unexplained investment in the impugned property. The income was assessed as per assessment order under section 63 dated 20‑6‑1998 as under:‑‑‑ Receipt estimated 4,00,000 Add backs out of profit & loss account 22,016 Addition under section 13(1)(aa) undisclosed investment 175,83,905 Total income assessed. 180,05,921 Being aggrieved and dissatisfied with the above treatment the appellant filed an appeal before the learned CIT(A) who set aside the assessment for de novo proceedings. Before the learned CIT(A) the core issue was in respect of addition under section 13(1)(aa) being unexplained investment in the impugned property. In the re‑assessment proceeding under sections 62/132 the Assessing Officer has not made addition under section 13(1)(aa) on account of the fact that the appellant has fully explained the source of investment however, the Assessing Officer has made an addition of Rs.6,20,79,000 under section 13(1)(d) of the Income Tax Ordinance, 1979, on the ground that the declared value of the impugned property was low, keeping in view some parallel cases mentioned by the Assessing Officer in his order at pages Nos.3 and

4. He has in this respect quoted plot No.497‑B Jamsheed Quarters Karachi, plot situated at Jamsheed Road and also plot situated at Farere Town. On this basis the Assessing Officer adopted the valuation of the plot @ Rs.15,000 per sq. yeds as against declared value Rs.2,

900. Thereby arriving at the total valuation of the plot at Rs.15,39,15,000 and after deduction of Rs.2,97,57,000 value worked out by him is at Rs.12,41,58,000 hence 50% of the appellant's share worked out at Rs.6,20,79,000 and hence addition under section 13(1)(d) was made to the declared income. Income was assessed as per assessment order under sections 62/132 dated 30‑6‑2000 as under:‑‑‑ Receipt estimated 4,00,000 Add backs out of profit & loss account 22,016 Addition under section 13(1)(aa) Undisclosed investment NIL (accepted) Addition under section 13(1)(d) 6,20,79,000 Total income assessed 6,25,01,016 Being aggrieved and dissatisfied the appellant filed an appeal before the learned CIT(A) who has maintained the order of the Assessing Officer, and has confirmed the addition under section 13(1)(d). Now the appellant/assessee is before this Bench on the grounds mentioned supra.

3. On behalf of the appellant, Mr. Jawed Zakaria has appeared and has argued the case at length. Regarding the ad hoc/lump sum estimation of commission receipt as confirmed by the learned CIT(A), the learned counsel has submitted that the learned CIT(A) has erred in maintaining the ad hoc/lump sum estimation of commission receipts of Rs.4,00,000 as against Rs.2,07,000 declared by the appellant. The estimation made by the Assessing Officer and confirmed by the CIT(A) is without evolving any basis/method. The learned counsel has in this regard referred to a case law reported as Rajput Metal Works v. CIT reported as 33 Tax 1 (Lah. High Court). Regarding addition of Rs.620,79,000 under section 13(1)(d) of the Ordinance, he has contended that the Assessing Officer as well as CIT(A) was not justified in making the addition of Rs.6,20,79,000 made under section 13(1)(d) in the case of the appellant as according to him, discriminatory treatment has been given in the case of the appellant being a co‑sharer of the same property. He has argued that the appellant was a co‑owner/co‑sharer of the property in question. It is very strange that the department has accepted the value declared by the other co‑owner/co‑sharer of the property. By not accepting the declared value in the case of the appellant, who was the co‑owner/co‑sharer of the, property, has been subjected to discrimination. Therefore, in the case of the appellant too same valuation should be accepted. Learned counsel on this issue has placed before us many decisions, which, are discussed hereunder:‑‑‑ In a case reported as (2001) 83 Tax 564 (H.C. Karachi) it has been held that:‑‑‑ "the basic question that need to be answered pertains to two different values that were determined in connection with the same plot. One portion was owned by the co‑sharer and the value declared by him was accepted. The declared value of the other portion of the same plot owned by the respondent was not accepted even though he insisted that since the value of the other portion of the same plot owned by the co‑sharer had been accepted, the value of his portion should also be accepted." In a case reported as (1978) 38 Tax 106 (H.C. India) Jaswant Rai v. CIT(A) wherein it has been held as under:‑‑‑ "If during the same assessment year the same quantity of wealth in possession of one co‑sharer were subjected to a lower rate of taxation, it would be highly improper to burden a similarly situated co‑sharer with a high rate of tax if such an action on the part of the Assessing Authorities were sanctioned, it would militate against the principles of equality of laws enshrined in Article 14 of the Constitution." In this judgment of the Indian High Court, it has been further held that:‑‑‑ "Under the Wealth Tax Act, 1957, the incidence of taxation is the ownership of net wealth. If during the same assessment year the same quantity of wealth in possession of one co‑sharer were subjected to a lower rate of taxation, it would be highly improper to burden a similarly situated co‑sharer with a high rate of tax. If such an action on the part of the Assessing Authorities were sanctioned, it would militate against the principles of equality of laws enshrined in Article 14 of the Constitution. " The learned counsel has also referred to an unreported decision of this Tribunal in a case bearing I.T.A. No.3034/KB of 1993‑94 dated 9‑3‑2001 wherein the department has filed the appeal on account of deletion of addition under section 13(1)(d) of the Income Tax Ordinance, 1979 by the learned CIT(A) on the ground that parallel cases cited by the Assessing Officer are not parallel but distinguishable. The Tribunal maintained the deletion of addition under section 13(1)(d) on the ground that the appellant being a co‑sharer having 50% share the valuation of the property in the case of co‑sharer had been accepted in the wealth tax case. In that case this Tribunal has further observed that parallel cases cited by the Assessing Officer are not comparable with the case of the appellant. The relevant extract from the said unreported judgment of this Tribunal dated 9‑3‑2001 is as under:‑‑‑ "The Assessing Officer has based his order on the basis of the value of the plot compared by him, details of which find place in assessment order. Unfortunately, he has not compared the rates of industrial plot with other industrial plot of the same locality and has also failed to look in to explanation submitted, what to say of sufficient evidence. It is worth mentioning that value declared has been accepted in wealth tax in case of co‑sharer having 50% share. It is also important that penalty imposed in present case has been deleted by the learned ITAT: Hence to determine the value of industrial plot keeping in view the value of the residential plot is not only unjustified but also not warranted by law." The learned counsel has cited another case‑law reported as 1997 PTD (Trib.) 2383 wherein the valuation of property in the case of co‑owner being accepted the addition made under section 13(1)(d) of the Income Tax Ordinance, 1979 in respect of assessee was also deleted. It was further laid down in that case that the two properties having similar situations deserve the same treatment. In another order of the this Tribunal W.T.O. v. Naziran Begum C/o Sitara Textile Karachi W.T.A. No.740/HQ of 1991‑92 (assessment year 1989‑90) date of order 22‑11‑1999 (unreported) wherein this Tribunal has held that the valuation of property in the case of co‑owner/co‑sharer should be the same whichever less assessed. The relevant para. of the order, dated 22‑11‑1999 is reproduced hereunder:‑‑‑ "We have considered the arguments of both the learned representatives. We have also perused the impugned order of the W.T.O. for the assessment year under consideration (1989‑90), the order of W.T.O. in the case of co‑sharer (1/2 share) Mst. Safia Begum for assessment year 1989‑90, the order dated 17‑4‑1989 for the assessment year 1987‑88 and order, dated 16‑11‑1992 for the assessment years 1990‑91 and 1991‑92 of the learned CWT(A). We have observed that the value of 1/2 share in House No. 139‑C People Colony, Faisalabad declared at Rs.2,90,000 has been estimated at Rs.3,20,000 in the case of Mst. Safia Begum in the assessment year 1989‑90 but the remaining 1/2 share of the same property for the same assessment year (1989‑90) has been estimated at Rs.21,00,

000. We are of the view that the incidence of taxation is the ownership of net wealth according to Wealth Tax Act. If during the same assessment year the same quantity of wealth in possession of one co‑sharer is subjected to a lower rate of taxation, it would be highly improper to burden a similarly situated co‑sharer with a higher rate of tax. If such actions on the part of the Assessing Authorities are sanctioned, it would militate against the principle of equality of laws enshrined in the Constitution. Learned CIT(A) has rightly reduced the estimated value. We therefore, find no warrant for interference in the impugned order. Accordingly, appeal by the department is dismissed. " The learned counsel apart from the above decisions on the above subject has also cited the following judgments:‑‑‑ 1988 PTD (Trib.) 494: Wherein it is directed that the same estimation be adopted in the case of the appellant as has been adopted in co‑owners. 1997 PTD (Trib.) 2383: Wherein the addition under section 13(1)(d) was deleted for the reasons that value of the property in the hands of other co‑owner has already been accepted, therefore, the same value was directed to be accepted. In view of the judgments cited supra the learned counsel for the appellant urged that it is clear, without any shadow of doubts that two different valuations for the similar property cannot be adopted. According to him, in the case of the appellant the valuation of the subject property which was jointly purchased by the two persons, higher valuations has been adopted. The Assessing Officer as well as the learned CIT(A) in view of the above judgments was not justified to adopt two different valuations, one higher valuation in the hands of the appellant and lesser valuation in the hands of the other co‑owner/co‑sharer which tantamounts to discrimination, which is also against the doctrine of equality and equal protection of law as enshrined in the Constitution of Pakistan. He has, therefore, contended that the addition made under section 13(1)(d) on this count may kindly be deleted. The learned counsel further contended that before the learned CIT(A) the appellant has, inter alia, among others, referred a case decided by the Hon'ble Karachi. High Court vide order, dated 10‑10‑2000 in W.T.A. No. 111 of 1992 (CIT v. Muhammad Ahmed) which was later reported as (2001) 83 Tax 564 (H.C. Kar.) wherein it has been held that department cannot adopt the varying valuation for distinct portion of the same plot in the hands of different assessees when there is no difference between the two portions. The Hon'ble High Court also referred in this judgment the case of (Jaswant Rai v. CIT(A) reported as (1978) 30 Tax 106) wherein it was observed that if during the same assessment year and the same quantity of wealth in the possession of one co‑owner/co sharer was accepted then it would be improper to assess same quantity of wealth of other co‑sharer with a higher rate of Tax. According to learned counsel, the learned CIT(A) has not followed the binding judgments of the Superior Courts, which has never been appreciated by the Superior Courts. The learned counsel has next argued that the judgments of the Superior Courts, High Courts, and Tribunal are binding on the CIT(A) being a subordinate appellate authority, under generally accepted practice and in view of Article 201 of Constitution of Pakistan, 1973. However, the learned CIT(A) has not taken pain to follow the judgment of the Hon'ble High Court. He has in this respect referred the reported decisions 1996 PTD 338 (Trib.) and 2002 PTD 654 wherein it has been held that the orders of the higher appellant authorities/Superior Courts are binding on the Revenue Authority/Lower Courts and by‑passing decision of the superior Court was deprecated by higher Courts and it was observed that such tendency needed to be curbed for better administration of justice. According to learned counsel, the learned CIT(A) has violated Article 201 of Constitution of Pakistan, 1973 by refusing to follow the judgment of Hon'ble High Court. The learned counsel for the appellant has contended that the uniform treatment should be given and valuation in respect of wealth tax as well as income tax should be similar/uniform. Valuation of plot being accepted by the department in the case of other co‑owner/co‑sharer not only in income tax but also in wealth tax proceeding, there is no justification for higher valuation in the case of the appellant in income -tax proceedings. In this connection a case law bearing I.T.As. Nos.119, 120 and 121/KB of 1999‑2000 decided on 20‑11‑1999 has also been cited by the learned counsel wherein the Tribunal has held that valuation of the property for the purpose of income tax and wealth tax should be uniform. In this connection the learned counsel has also invited our attention towards the wealth tax assessment order under section 16(3) of Wealth Tax Act, 1963 of the appellant for the said assessment year, 1995‑96 in which the Assessing Officer had determined the value of impugned property at Rs.1,75,83,905 and same Assessing Officer has passed income‑tax assessment order under section 63 of the appellant for the same assessment year, 1995‑96 on the same date which is the date of wealth tax assessment order i.e., dated 20‑6‑1998 and has accepted the value of impugned property. Only addition under section 13(1)(aa) was made and declared value of impugned property was accepted in original assessment order, dated 20‑6‑1998 passed under section 63 of the Ordinance. The learned counsel has also drawn our attention towards wealth tax assessment order of co‑owner Mr. Iqbal Ahmed which was passed on dated 24‑6‑1998 by the Assessing Officer of Circle E‑11, Zone `E' Karachi. An extract from that order is reproduced hereunder: ‑‑ "Assessee has declared half share in jointly owned Commercial Plot No. Com. 5, Block No.4 Clifton, measuring 10261 Sq. Yards. The Plot was purchased for 2,97,57,

000. The value of plot per D.C. Notification as on 30‑8‑1994 (Date of Purchase) being Rs.2898 per Sq. Yards for category‑1 works out at 10261 x 2898 = 2,97,36,

378. As the price paid was Rs.2,97,57000 is slightly more than D.C. Notification, the same after proper verification is accepted. Half share of assessee works out at Rs.1,68,78,5000 since assessee has declared his share at 1,52,97,700 inclusive of some expenses the same is accepted here with Rs. 1,52,97,700."

4. The learned counsel explaining the scheme of law in respect of addition under section 13(1)(d) has invited our attention to section 13(1)(d) which is being reproduced herewith for convenience. "13(1)(d). Where, the assessee has made investment in any income year or is found in respect of any such year to be the owner of any valuable article and the Deputy Commissioner of Income Tax finds that the amount expended on making such investment or in acquiring such valuable article exceeds the amount recorded in this behalf in the books of account maintained by him or shown in the wealth statement furnished or wealth tax return filed under section 58 in respect of that year and the assessee offers no explanation about the nature and source of such investment, acquisition of valuable article, or the explanation offered by him is not; in the opinion of the Deputy Commissioner of Income Tax, satisfactory, the value of the investment or the value of the article, shall be deemed to be the income of the assessee of such income year chargeable to tax under this Ordinance." From bare reading of above said section according to learned counsel the following steps may be gathered: Step No. 1 Assessee should be owner of any valuable article or made investment in acquiring immovable/movable property. Step No.2 Assessing Officer must have concrete evidence that the assessee has really expended more money than recorded in the books of account or shown in the wealth statement filed under section 58 for acquiring such valuable article or making investment. If there is no clear‑cut proof in this regard the addition/valuation cannot be made. Step No.3 Clause (d) of section 13 does not apply to a case where neither books of account were maintained/produced nor wealth statement/return or the same filed but not shown therein filed under section

58. Step No.4 Assessing Officer must call for explanation of the assessee regarding expending of higher money than recorded and explanation offered by the assessee is considered to be un‑satisfactory. Step No.5 Approval of IAC is mandatory. The learned counsel has elaborated the above steps with the help of case laws as under:‑‑ As per wording of the section 13(1)(d) and case laws the Assessing Officer has to prove that the assessee has expended more money than recorded in the books of account or shown in the wealth tax return. The question of valuation of the property is the secondary and subsidiary matter. Reliance in this respect has been placed on the case laws: ‑‑ 2001 PTD 1386 (H.C. Lah.). Wherein the following principle have been laid down by the Hon'ble High Court of Sindh:‑‑ (a) Valuation cannot be made on the basis of presumption and assumption. (b) The addition can be made if it is found that the assessee is a owner of a valuable article and it is proved that the assessee has expended investment more than recorded in .the books of account/registered sale deed. (c) Maintenance of books of account is sine qua non. (d) Lowness of cost of purchase is not a sufficient ground for making the addition under section 13(1)(d). In this connection the learned counsel has also relied on the following further case laws:‑‑‑ (1999) 79 Tax 35 (Trib.). Wherein it was observed that the only exception being if the Revenue could prove that the consideration shown in the Registered Conveyance deed was too low and that the assessee had acquired the property by expending more money. It was further held that mere fact that the market value of an asset was allegedly higher than the price an assessee paid for its acquisition did not justify any addition under section 13(1)(d) of the Ordinance. Further that normally value of an asset shall be taken as recorded in the sale‑deed. In the case before us we do not find that any material worth the same was brought on record to show that actually a higher consideration was paid by assessee to purchase these properties than shown/declared in Registered deed. Further the learned Tribunal had considered the fact that the value shown in the wealth tax proceedings had been accepted by the Revenue itself, therefore, the treatment of the Revenue on wealth tax side was also held by the Hon'ble Tribunal to be in accordance with law. In the above judgment the learned Tribunal further observed that every individual purchaser or seller has his own constraints and compulsion to buy or sell a property and the Assessing Officer proceeded on altogether different premises by highlighting the commercial importance of the property for the purchaser. In support the following case laws have also been cited. (2001 PTD 1387), (1995 PTD 1170) and (1995 NTR 100). Besides the above judgments the learned counsel has commented on case law reported as (1993 PTD 952) wherein this Tribunal has held that the Assessing Officer should establish through evidence that the assessee has really expended more money than that what has been recorded in his books of accounts or shown in the wealth statement. Any such finding must be supported by objective evidence. This Tribunal in this judgment has observed that 101 situations may be visualized in which a person has an opportunity to acquire property for a price lesser than the market price or for inadequate consideration. The real question in any such case would be whether the amount expended by the assessee for the acquisition of property was the same which was recorded/shown in his books of account and wealth statement, Registered deed or the amount appearing in the books or the statement or Registered sale‑deed had been understated. The law does not prohibit the one to acquire or the other to sell a property for inadequate consideration. Inadequacy of the consideration does not render a contract void. The learned counsel submitted that from the above judgment it is evident that one of the conditions necessary for the Application of the provisions of clause (d) of section 13 of the Income Tax Ordinance, 1979, is that the Assessing Officer must have to establish that the amount expended by the assessee on making the investments in question or in acquiring the money or valuable article concerned, exceeds the amount recorded in that behalf in Registered sale‑deed, the books of account or wealth statement of the assessee. It cannot be denied that the assessee would not in such cases admit forthwith that he has actually entered the amount incurred in making the investment or in acquiring the money or valuable article, as the case may be, at a lesser figure than that which he actually spent. The normal presumption is in good faith and the presumption is that the entries in the account books of the assessee or value declared in Registered sale‑deed are made in the ordinary course of business and there is no concealment of income. Under these circumstances, it follows that, the onus of proving the fact, that the assessee had actually spent more than that entered in his books of account, or wealth statement or shown in Registered sale‑deed in making the investment or in acquiring the money or valuable article, as the case may be, would be on the Assessing Officer and it would, therefore, be for him to produce the necessary tangible material to support that finding. On a careful examination of the provisions contained in clause (d) of section 13, it would appear that the onus of proof in this regard would not be discharged by the Assessing Officer, by merely showing that the market value of the investment money or valuable article was really more than that which was actually stated to have been paid by the assessee and entered in the books of account or wealth statement of the assessee or declared in Registered sale‑deed. What the Assessing Officer has to prove under the provisions of clause (d) of subsection (1) of section 13 read with section 13(2) is that the assessee had actually spent more in making the investment or in acquiring money or valuable article than what has been shown to be incurred in respect thereof. Thus, the department has to. prove actual higher payment by the assessee and not actual higher market value. If the Assessing Officer fails to discharge the onus so cast upon him by law with some concrete and clear‑cut evidence, it would appear that the assessee cannot be charged to tax in respect of the alleged excess as contemplated by provision of clause (d) and subsection (1) and section 13(2) of the Ordinance. Regarding the Step No. 2, learned counsel has submitted that Sub -Clause (d) of section 13 does not apply to a case where neither books of account were maintained nor statement of assets and liability has been filed under section 58 of the Ordinance or the same has been filed but has not been shown therein. In this respect, learned counsel has referred case laws, wherein it has been held that the provisions of section 13(1)(d) do not apply to a case wherein neither books of account were maintained nor statement of assets and liability filed, as it has been held that assessee having no independent source of income except share income and neither maintaining any 'accounts nor, filing any wealth statement under section 58 of the Ordinance‑‑Provisions of sub section (d) of section 13(1) not attracted‑‑-Addition made as deemed income' was held, illegal and was deleted, in a case reported as (1986) 54 Tax 85 = 1986 PTD

855. In another case the additions were deleted because the provisions of section 13(1)(d) were agitated to be not applicable to the facts of the case as the appellant had neither maintained any books of account nor made any declaration of assets under section 58 of the Income Tax Ordinance. It was so held in a case reported as PTCL 1990 CL

539. Regarding the Step Nos.3 and 4, learned counsel has submitted that if Assessing Officer has in his possession a concrete documentary evidence the fact regarding that assessee has really expended more money than declared/recorded in the Registered document or books of account/wealth statement and on the basis of clear cut evidence of under‑statement of the value he calls the explanation of the assessee and such explanation is not found satisfactory by the Assessing Officer then he can make the addition/ valuation. However, if an assessee explains the reasons and Assessing Officer himself is satisfied with the explanation, the addition cannot be made. He cannot make automatic addition/valuation on the basis of information collected from property dealers, auction price and parallel cases. Reliance in this respect has been placed on the case reported (1999) 79 Tax 35 (Trib). Regarding the last Step No.5, Mr. Zakaria submitted that if the Assessing Officer had not obtained mandatory approval of the I.A.C. for adopting the value of the investment, the addition is liable to be deleted. The learned counsel has submitted that the Assessing Officer cannot make the addition on the ground that the market value of an asset is higher than the price paid. In other words Assessing Officer has to bring some concrete evidence regarding expenditure of higher money than recorded in the registered sale‑deed/property documents.

5. According to the learned counsel appellant case is a no account case. Neither any books of account being maintained nor the property has been shown in the wealth statement and wealth tax return and furthermore the Assessing Officer has not even established that the appellant has really expended more money than recorded/shown in the Registered Conveyance deed, hence, basic ingredients of section 13(1)(d) is missing and due to absence of these basic ingredients section 13(1)(d) cannot be applied and addition is liable to be deleted. It has been submitted that the Court has to adopt the interpretation, which favours the assessee, applies with full vigour to a case in which different values of the same property are arrived at by adopting different methods. In such a situation, it is fair and proper that the benefit of the method which is most favourable to the assessee should be allowed to him and the choice of the method to be adopted for determining the value of property should be left to the assessee as according to learned counsel, has been held in a case reported as (1977) 107 ITR 477 (PB & HR). He has contended that the Assessing Officer has made the addition under section 13(1)(d) without fulfilling the mandatory requirements. The approval of IAC is not a procedural but mandatory requirement for acquiring the jurisdiction. The approval of IAC in this case was obtained on 30‑6‑2000 and the order was passed on the same date i.e. 30‑6‑2000. It is contended that the Assessing Officer should have given deliberate consideration to the guidance of the learned IAC before proceeding further, and in this case Assessing Officer has not applied his mind to the direction given by the IAC. In this regard he has cited a case law reported as (2001) 83 Tax

132. According to learned counsel the Registered Sale‑deed is a solemn public document and a piece of strong evidence and the appellant has already submitted before Assessing Officer/Dy. Commissioner of Income Tax, the copy of conveyance deed, hence, there is no justification in law to embark upon suspecting the validity and genuineness of registered sale‑deed, authenticated by the provisions of four independent enactments such as Contract Act, Transfer of Property Act, Stamps Act, and Registration Act. Reliance it this regard is placed on following cases:‑‑ (i) 1996 PTD 327, (ii) 1996 PTD 1088 (T) and (iii) NTR 1995 Trib.

11. Learned counsel has submitted that it is trite law that the sale‑deed being a public document is a piece of evidence to establish the payment for the property sold, and the amount stated therein to have been paid as consideration, carries an element of sanctity until it is controverted by a strong and cogent evidence to the contrary. According to learned counsel, the Assessing Officer has grossly erred in discarding a registered sale‑deed, the sale price of a property, without procuring any corroborative evidence to demolish the recitals contained in the said deed. He has repeatedly insisted that the so‑called parallel case cited by the Assessing Officer on the basis of which the Assessing Officer has made the addition under section 13(1)(d) are not parallel but distinguishable. He is of the view that the Assessing Officer for the purpose of comparison of property should cite a similar property that is to say that parallel case should be from same locality. Even a corner plot cannot be termed, as a parallel if the plot of an assessee is situated in the mid of the plot line, like with like should be compared, and chalk cannot be compared with cheese, for the purpose of citing/relying parallel cases. The Assessing Officer has compared the plot situated at Jamsheed Quarters and Frere Town as parallel cases for the purpose of making the addition while the plot of the appellant is situated at Block No.4 Clifton Karachi. Therefore, the Assessing Officer has ignored the well‑settle principle for adopting parallel cases. In this regard following case laws has also been referred:‑‑ (1) (1994) 69 Tax 167, (2) 1994 PTD 371, (3) 1989 PTD 311, (4) PTCL 1989 CL 9 and (5) PTCL 1997 CL

129. Wherein it has been held that for making the addition under section 13(1)(d) the reliance on some other plots being different from the one declared by the assessee is not justified.

6. The learned D.R. on the other hand has supported the orders of the officers below but has failed to say anything specific in rebuttal of the arguments of the learned counsel. He has contended that both the officers have given full justification for the treatment meted out by them.

7. We have heard learned representatives of both sides and have also perused the impugned order, the assessment order, the case law referred and other relevant documents. We have given our anxious thoughts to the comprehensive and many fold arguments of the learned counsel for the appellant. From perusal of the assessment order, we have found that the DCIT has made the assessment order by adopting higher value of the half share of the plot on the basis of parallel cases of plot situated at Frere Town, Clifton, Karachi and Jamsheed Quarters area, whereas the plot of the appellant is situated at Block 6, Clifton, Karachi. We have observed that the plot cited as parallel by the DCIT has no relevance or similarity with the plot of the assessee. This Tribunal as well as the higher appellant authorities have provided guidelines for the purpose of comparison, holding, in many cases that the parallel cases should be from the same locality. Therefore, the plots cited in the assessment order are not parallel one but rather they are distinct and possess different characters and have no relevance with the plots of the assessee. It is an admitted fact that the property was jointly purchased by the two persons. The appellant enjoys 50% of the share in the property. However, the valuation in the case of other co‑owner has been accepted and it is very strange that the appellant has been burdened with imaginary higher valuation. We are, therefore, of the view that this action of the officers below is not only against the canon of equality but also against the principle of natural justice. We would like to observe that this Tribunal has time and again laid down the principle that the valuation of the property for wealth tax and the income‑tax purpose should be the same. Therefore, the appellant's valuation in respect of the plot in question as adopted by the department in wealth tax should have to be adopted, but both the officers have not considered this established principle. It is also worth mentioning here that the value declared by the appellant in Conveyance Deed is higher than the Collector's Rate. The Assessing Officer has no definite proof that the appellant has expended more money than recorded in the Conveyance Deed. The sole criteria adopted by the Assessing Officer for adopting higher valuation of this half share of the plot is so‑called parallel cases. We have found that before the learned CIT(A) the learned counsel, has, cited a judgment of the Hon'ble Karachi High Court, dated 10‑10‑2000 in W. T.A. No. 111 of 1992 (which has been mentioned at page 4 of the impugned order, dated 17‑5‑2001) of the learned CIT(A), which was later on reported as 2001 PTD 2961 but the learned CIT(A) has placed reliance on the judgment of the Tribunal which has been overruled by the judgment of Hon'ble High Court discussed supra. Before relying on this judgment the learned CIT(A) should have made sure whether any other judgment of Higher appellant authorities is available against the order relied upon by her. We are of the view that the reliance by the learned CIT(A) is on the order which is almost 10 years back and that order has already been overruled by the Hon'ble High Court in favour of the assessee, hence reliance on this judgment by her is misconceived and misplaced. Even otherwise, there are so many judgments on this issue in favour of the appellant as pointed out by the learned counsel. We have found that before the learned CIT(A) the learned counsel has cited a judgment of the Hon'ble High Court wherein the Hon'ble Court of Sindh has observed that it is not open to the department to discriminatingly adopt varying valuations for distinct portions of the same plot in the hands of the different assessees when ex facie there is no disparity between the two portions. But the learned CIT(A) has ignored the above discussed observation. This judgment is binding on all the subordinate Courts under Article 201 of Constitution of Islamic 'Republic of Pakistan. However, the learned CIT(A) has not followed this binding judgment of the Hon'ble High Court. We deprecate the tendency of ignoring or, by passing the decisions of Superior Courts on the part of Revenue Authorities. This tendency needs to be curbed for the better administration of justice, observing of discipline and maintaining the rule of consistency, as has been held by this tribunal as well by the Superior Courts in many judgments. We, therefore, keeping in view the principle laid down by the Hon'ble High Court in the judgment reported as 2001 PTD 2961, after considering all the above facts, circumstances and the case law find no justification for the addition made under section 13(1)(d) of the Income Tax Ordinance, 1979, which is, therefore, deleted and both the orders of the two officers below on this issue are vacated, and the appeal on this issue is allowed.

8. The only other ground pressed by the learned counsel for the appellant relates to estimation of commission receipts. The estimation of commission receipt by the Assessing Officer and its confirmation by the learned CIT(A) seems to be excessive keeping in view the facts and circumstances of the case and is therefore reduced to Rs. 3,00,000.

9. Ground No. 10 regarding Profit and Loss disallowances has not been pressed by the learned counsel for the appellant, the appeal on this ground is, therefore, dismissed being not pressed.

10. The appeal succeeds to the extent and in the manner as indicated above. C. M. A./276/Tax(Trib.) Appeal partly accepted.