1989 PLP 1249 (PTD)

AJMAL MIAN, C.J.--The above petition is directed against the order dated 13-5-1986 passed by respondent No.l in exercise of suo Motu revisional power under Section 16 of the Capital Gains Tax Act (hereinafter referred to as the Act), whereby for the purpose of capital gains tax, he increased the price of the land from Rs.500 per sq. yd. to Rs.750 per sq. yd., which was the price originally fixed by the Excise and Taxation Officer.

2. Brief facts leading to the filing of the above petition are that the petitioner owned a house built on Plot No.237, situated in Staff Lines, Karachi Cantt. (hereinafter referred to as the property), and the plot of land originally measured 11,76102 sq. yds. taken from the Cantt. Board on the old grant basis. It appears that out of the above area an area of 3,932,50 sq. yds. was surrendered by the Petitioner to the Government on 27-10-1985, as per averment of the petitioner without any compensation in terms of the grant.

3. Be that as it may, it appears that the petitioner, through the sale-deed dated 15-11-1985 registered on 17-11-1985, sold the above property for a sum of Rs.35 lacs. The petitioner approached the Excise and Taxation Officer "L" Division, Karachi for obtaining Clearance Certificate in relation to the capital gains tax. The Excise and Taxation Officer by his order dated 13-11-1985 assessed the value of the property at Rs.750 per sq. yd. He allowed rebate of Rs.7,50,470 against the assessed amount of Rs.58,00,

000. The petitioner being aggrieved by the above order filed an appeal which was partly allowed by respondent No.2 by his order dated 1-1-1986, whereby he reduced the price of the plot from Rs.750 per sq. yd. to Rs.500 per sq. yd. He also increased the rebate by 20%. He accordingly determined the value of the property for the purpose of gains tax at Rs.39,00,000 and assessed the amount of gains tax, namely Rs.6,12,

906. The petitioner did not file any revision against the above order. However, respondent No.l in exercise of suo motu revisional powers took up the case and set aside the order of respondent No.2 and restored the order of respondent No.3. The petitioner, being aggrieved by the above order, has filed the present petition.

4. In support of the above petition, Mr. Afsar Abidi, learned counsel for the petitioner, has vehemently urged that neither respondent No.3, nor respondent No.1, have given any cogent reason or basis for assessing the price of the land at Rs.750 per sq. yd., in spite of the admitted position that the petitioner had surrendered 3,932.50 sq. yds., land to the Government about a month earlier to the date of the sale without receiving any compensation. It is further submitted by him that the surrender of the land by the petitioner to the Government without payment of compensation, was fully proved by the above factor of surrender.

5. From the order it seems that respondent No.1, while interfering with the appellate order in exercise of suo motu revisional power, has not referred to the prices obtaining in the vicinity of the property, which were granted on the same terms. There seems to be no basis on which respondent No.l could have interfered with the appellate order. Even no reference has been made to the estimated price of the land in the Line Area for the purpose of capital gains tax. We would, therefore, allow the above petition and declare the impugned order as being illegal and without lawful authority. The order of respondent No.2 is restored. Respondent No.3 is directed to refund the excess amount recovered. There will be no order as to costs. M.Z.S/E-31/K Petition allowed.