1988 PLP (Trib (PTD)

Shaukat Ali Babar D. R., for Respondent. Date of hearing: 10th May, 1988. A. A. ZUBERI (ACCOUNTANT MEMBER).-- This appeal has been filed at the instance of an 'individual' who is a wholesale vendor of electric equipment for offices. The appeal impugnes order dated 2-11-1986 passed by the learned C.I.T.(A), in respect of assessment year 1985-86.

2. The learned counsel explained that no books of accounts were maintained but the return in income was filed under SAS accompanied by the documents prescribed in the Self-Assessment Scheme for the relevant year. Immunity was also claimed by the Appellant. The assessing officer however, invoked para 9 of Self-Assessment Scheme vide CBR Circular No.3 dated 17-6-1985 to make an assessment under the normal law. The assessment was finally framed determining total income at Rs.460,000 which besides the business income included an amount of Rs.60,000 which was deemed as income by fiction of law under subsection (1)(d) of section 13 of the Ordinance. On appeal the learned Commissioner set aside the assessment. It was contended that the case was not rightly set apart for normal assessment and overlooked the fact that the condition precedent for such course of action was the existence of positive evidence of concealment, which was conspicuous by its absence in the present case. The learned counsel drew our attention to the relevant portion of the assessment order to show that the case fulfilled all the requirements for SAS but immunity was 'denied to the Appellant on conjectures and surmises based on whimsical inference from a licence worth Rs.579, 200 which was utilised for the imports during the relevant year. Further on; supplies aggregating Rs, 2,985,000 and working capital at Rs.1,40,000 were held valid for inferring that the Appellant had committed concealment and furnished inaccurate particulars of his total income. It was overlooked by the assessing officer that the amount of capital to which he made a reference was not relevant for the year under consideration but the figure was taken from the wealth statement filed for the assessment year 1984-85 while for the current year wealth statement was not filed, as it was not required by law, and the assessing officer did not call upon the Appellant to furnish the same. The learned counsel took support from this Tribunal's decision reported as 1987 P T D (Trib) 441 where it has been held that in order to take out a case from the scheme of self-assessment it is necessary to have "positive evidence of concealment" and that mere conjecture is not enough to select a case for normal assessment under para 9 of the Scheme. Reference was also made to an unreported decision vide ITA Nos.1124 to 1127/1983-84 dated 14-10-1985 in para 13 of which the clear distinction was drawn between information, 'evidence' and "positive evidence of concealment" etc. The D. R. on his turn justified that the Commissioner had simply set aside the assessment which would provide the Appellant a fresh opportunity to plead their case before the assessing officer where they can make the claim for immunity afresh and also contest the estimate of sales etc. and the disadvantage of present ex parte assessment would be washed off.

3. After considering the rival arguments of the two sides we are of the view that the scheme of self-assessment has been liberally prescribed for all Assessee except those who do not qualify for the reasons spelled out in the scheme for each year. The legislature has also been magnanimous in providing the facility of immunity as a bargain for enhancement in income shown from year to year. Therefore, any return which is to be taken out of the scheme or denied the facility of self-assessment or set apart for normal assessment, has to be exceptional circumstances and after careful examination of all aspects. It is for this reason that a strict criterion has been prescribed e.g. "positive evidence of concealment". Obviously, "positive evidence" is much more than mere 'information' and something very near to an established fact. In the present case this criterion was totally missing as the assessing officer got the case set apart for normal assessment on the presumption that the capital was not be enough to make the import under one licence the value of which exceeds the amount of capital. We, therefore, feel satisfied that the case was wrongly set apart for normal assessment, the facility of self-assessment wrongly' denied and the protection of 'immunity' was refused unjustifiably. In, these circumstances we feel no hesitation in VACATING the order by' the learned Commissioner and CANCELLING the assessment to order' that the return be ACCEPTED under Self-Assessment Scheme. The appeal SUCCEEDS IN consequence. M.B.A./549/T Appeal accepted.