2011 PLP 1175 (PTD)
Messrs SHAKEEL CONSTRUCTION COMPANY through Masood Ahmed Abbasi, Karachi Versus SECRETARY, REVENUE DIVISION, ISLAMABAD
| Citation | 2011 PLP 1175 (PTD) |
| Forum / Court | Federal Tax Ombudsman |
| Bench Members | Dr. Muhammad Shoaib Suddle, Federal Tax Ombudsman |
| Parties | Messrs SHAKEEL CONSTRUCTION COMPANY through Masood Ahmed Abbasi, Karachi Versus SECRETARY, REVENUE DIVISION, ISLAMABAD |
| Primary Law | Income Tax Ordinance (XLIX of 2001) |
Q1: What are the key laws and sections cited in 2011 PLP 1175 (PTD)?
This judgment primarily cites: Income Tax Ordinance (XLIX of 2001) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2011 PLP 1175 (PTD)?
The case was heard and decided by the Federal Tax Ombudsman bench comprising: Dr. Muhammad Shoaib Suddle, Federal Tax Ombudsman.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2011 PLP 1175 (PTD) (Messrs SHAKEEL CONSTRUCTION COMPANY through Masood Ahmed Abbasi, Karachi Versus SECRETARY, REVENUE DIVISION, ISLAMABAD). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Headnotes / Summary
Ss. 12, 122(5-A), 124, 153 & 170
Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), Ss.2(3), 9 & 10
Complainant being a sole proprietary enterprise was engaged in transporting hard waste and garbage
Complainant was being assessed to tax as a service provider and transporter of goods
Additional Commissioner, initiating suo motu action under S.122(5-A) of Income Tax Ordinance, 2001, categorized complainant's receipts as of a contractor
Additional Commissioner, had failed to explain as to how the complainant could be treated as a contractor covered by clause 'C' of subsection(1) of S.153 of Income Tax Ordinance, 2001, when he was actually covered by the exception provided in said clause
Order of Additional Commissioner was arbitrary and unlawful, tantamounting to maladministration in terms of S.2(3)(i) of Establishment of Office of Federal Tax Ombudsman Ordinance, 2000
Recommendations were made to Federal Board of Revenue to direct the Chief Commissioner to take action under S.122-A of Income Tax Ordinance, 2001 as per law and issue refund due within 21 days; to ask the Additional Commissioner, to explain within 15 days as to why disciplinary action could not be recommended against him; and also whether he would like to be heard in person; to examine the desirability how an order set aside by the Commissioner (Appeals), was re-opened under S.122(5-A) of Income Tax Ordinance, 2001 by Additional Commissioner, an officer junior to the Commissioner (Appeals) and to report compliance within 30 days. ? Mumtaz Ahmed, Advisor, Dealing Officer. Masood Ahmed Abbasi, Authorized Representative. Muhammad Saeed Nashir Additional Commissioner (IRS), Departmental Representative.
Judgment & Decree
3. During the hearing of the complaint, the Additional Commis?sioner pleaded that he exercised the powers under section 122(5A) to amend the assessment as it was found to be erroneous and prejudicial to the interest of revenue. He, however,. failed to explain as to how the Complainant could be treated as a contractor covered by clause (c) of subsection (1) of section 153, when he was actually covered by the exception provided in the clause.
4. The pleadings have been considered and record perused. The following four issues have emerged as a result of the discussion: (i)???????? no proper opportunity was provided before finalizing the assessment; (ii)??????? there were no proper grounds for deviation from the treatment given in the past; (iii)?????? during the hearing the Additional Commissioner conceded that the Complainant was not a janitorial contractor; and (iv)?????? the order passed by the DCIR was not erroneous in law as it was passed by way of giving appeal effect to the order passed by CIT(A). Findings:
5. In view of above mentioned reasons, the Additional Commissioner's order is arbitrary and unlawful, tantamounting to maladministration in terms of section 2(3)(i) of FTO Ordinance. Recommendations:
6. F.B.R. to direct the Chief Commissioner to (i)???????? take action under section 122A, as per law, and issue refund due within 21 days; (ii)??????? ask the Additional Commissioner, who passed order under section 122(5A) apparently without any bona fide reasons, to explain within 15 days as to why disciplinary action may not be recommended against him, and also whether he would like to be heard in person; (iii)?????? examine the desirability how an order set aside by the Commissioner Appeals was re-opened under section 122(5A) by Additional Commissioner, an officer junior to the Commissioner Appeals, so as to enable the F.B.R. to take appropriate measures for ensuring due decorum in the IRS; and (iv)?????? report compliance within 30 days. H.B.T./114/FTO????????????????????????????????????????????????????????????????????????????????? Order accordingly.