2002 PLP 2761 (PTD)

EJAZ AFZAL KHAN, J.

These Appeals Nos.1 and 2 of 1998 are directed against the order dated 2-6-1998 in I.T.As. Nos.50 and 51 (FB) of 1997-98 for the assessment years 1991-92 and 1992-93 passed by the learned Income Tax Appellate Tribunal, Peshawar Bench, Peshawar whereby the appeals filed by the Department were allowed and on setting aside the orders of the learned Commissioner Income Tax, Wealth Tax, Appeals Zone-II, Peshawar, the case was remanded back to the Assessing Officer with the direction to take fresh action on merits after giving a reasonable opportunity of hearing to the assessee/appellant. As both the appeals have arisen out of the same order, we propose to dispose them of through this judgment.

2. The facts forming the background of this case are that the case of the. appellant was reopened on the basis of Inspection report dated 29-1-1995 from the Additional Director Inspection and Audit, mainly on the ground that the closing stock of the office at Bannu and Peshawar has not been shown on the assets side of the balance-sheet.

3. The learned counsel appearing on behalf of the appellant mainly contended that the order passed by the Commissioner Income Tax (Appeals) was well-reasoned and well-founded as such needed no interference and that the learned Appellate Tribunal by acting against the law declared in the case of Edulji Dinshaw Limited v. Income-tax Officer (1990 PTD 155) had erred by remanding the case. It was further pointed out by the learned counsel that none of the condition enumerated in sections 13(c) and 65 of the Income Tax Ordinance was in existence so as to call for the reopening of the case. The learned counsel to support his argument also placed reliance on the case Messrs Central Insurance Company and others v. The Central Board of Revenue and others (1993 SCMR 1232). The learned counsel by concluding his submission contended that there was hardly any occasion for reopening of the assessment proceedings on the basis of the audit objection when the material forming the basis of proposed re-assessment was already available on the record and no case for concealment was made out.

4. In reply the learned counsel for the respondent-Department contended that the reopening of the assessment proceedings was rightly ordered because the document whereby a huge asset of more than Rs.50,00,000 (Rupees fifty lacs) was explained appears to. be doubtful on the face of it. The learned Appellate Tribunal, he contended, in the circumstances of the case, was justified in remanding the case to the Assessing Officer for making a probe into the genuineness or otherwise of the document and that the decision of the Income Tax Appellate Tribunal being free from any legal or jurisdictional error merits no interference.

5. We have serious considered the arguments of the learned counsel for the parties, and carefully perused the record and the relevant documents.

6. A perusal of the assessment order dated 30-3-1993 would reveal that he original assessment for the year 1990-91, 1991-92, 1992-93 was completed under the Self-Assessment Scheme. The statement of account filed with the return did not show at all the closing stock of the office at Bannu and Peshawar on the assets side of the balance-sheet, which was mainly the reason for reopening of the assessment. Though according to the stance taken by the assessee, the revised balance-sheets along-with the loan agreement were dispatched to the office and were accordingly received but their availability at the time of completion of assessment, let alone their consideration is not borne out from the record. The very observation of the Commissioner Income Tax (Appeals) that "if the revised balance-sheets were misplaced by the office, it was not the appellant's fault, clearly goes to prove that neither the material, forming basis for reopening of the case, was available nor it was consciously considered at the time of the completion of assessment. No doubt in the judgment so relied upon by the learned counsel for the appellant it was held that once all the facts have been fully disclosed by the assessee and considered by the Income Tax Authorities and the assessment has been consciously completed and no new fact has been discovered, there can be no scope for interference with the concluded transactions under the provisions of section 65 of the Ordinance on the ground that the income chargeable to tax under the Ordinance has escaped assessment or has been under assessed in the terms of section 65(1)(a)(b) of the Ordinance. But in view of the distinct and distinguishable facts and features of this case as adverted to above, we are afraid, these cases will be of no help to the case of the appellant as at the time of completion of assessment the availability and conscious consideration of the material, forming basis for reopening of the case are not borne out from the record. We, therefore, find no illegality or jurisdictional error in the order of the learned Income Tax Appellate Tribunal, so as to justify interference therewith under section 136 of the Income Tax Ordinance. For the foregoing reasons these appeals being without merit are dismissed. C.M.A./M.A.K./543/P Appeals dismissed.