1996 PLP (Trib (PTD)

Date of hearing: 28th November, 1995 ASHFAQ AHMAD (ACCOUNTANT MEMBER).

The department has come up in appeal against the order of the. A.A.C. of Income Tax, Range-E, Lahore, dated 1-10-1987. As per the grounds of appeal the department is aggrieved on account of the following:-- "(1) That the annulment of the assessment by the learned A.A.C. is illegal and unjustified as the assessment had rightly been framed on 28-6-1987 as is evident from the D.C.R. Entry No.3358, dated 28-6-1986. Further, the Demand Notice was also served on 30-6-1987. (2) That the partly set aside assessment had already been contested in appeal before the learned Income Tax Appellate Tribunal vide I.T.O.'s letter No.377/02, dated 12-2-1987. In view of this aspect it was not hit by limitation. Under section 66(1)(c) of the Income Tax Ordinance, 1979. The limitation for assessment is still available. "

2. The brief facts of the case are that the assessee had filed appeal before the A.A.C. where at the time of the hearing the assessing officer stated that the appeal is time-barred as the notice was served on 30-6-1987 and the appeal was filed on 3-8-1987. The learned counsel, on the other hand, stated before the A.A.C. that the demand notice was served on 13-8-1987. Thereafter the A.A.C. scrutinized the demand notice available on record and found that it only bore the signatures of the notice server. As such, the A.A.C. held the appeal to be within time. The basic case of the assessee before the A.A.C. was that the assessment order under section 66 was barred by time. The A.A.C. has stated in his order that the original assessment in this case was 'set aside by the then A.A.C. and as per I.T.O's record he received the A.A.C.'s order on 27-11-1985. The date of order typed and incorporated in the assessment order is 7-7-1987. According to the A.A.C. to I.T.O. had not maintained any proper order-sheet for the year under consideration and, therefore, from the record available with him it was not clear whether any order sheet was made or not for any date relevant to the year under appeal. The A.A.C. further found that the ITO had proceeded Ex parate stating the date of default. Furthermore, the IT-30 did not have any date. The I.T.O. was confronted with these facts who request the A.A.C. to consult the D.C.R. to find out the date of assessment order. The A.A.C. ''ejected the request of the I.T.O. on the ground that the D.C.R. is a part of office record and is not directly relevant to the present issue. The assessment order was accordingly annulled.

3. We have heard the learned authorized representative of both the parties. The learned counsel for the assessee has supported the order of the A.A.C. The learned D.R. stated that the A.A.C. had annulled the assessment order without appreciating the true facts of the case. In this regard he was asked by us to produce all the relevant record alongwith the D.C.R. so that was may be in a position to come to a definite conclusion with regard to the facts of the present case. On the date of next hearing i.e. 31-8-1995 the learned D.B. failed to produce the record. He was accorded another opportunity to produce the relevant record on 17-10-1995 but not record was produced. Even today the D.R. has appeared without any record. In these circumstances, we are not left with no alternative but to hold that department is disinterested in persuing its appeal and we reject it accordingly. A.A./175/T????????????????????????????????????????????????????????????????????????????? Order accordingly.