2005 PLP 1044 (PTD)

NASIM SIKANDAR, J.

This further appeal under section 27 of the late Wealth Tax Act, 1963 is directed against the order of a Division Bench of the Income Tax Appellate Tribunal, Lahore, dated 21-12-2002. Following questions of law are claimed to have arisen out of the impugned order of the Tribunal:-- (i) Whether on the facts and in the circumstances the Tribunal has failed to pass a speaking order? (ii) Whether on the facts in the circumstances of the case learned Tribunal has failed to record its reasoning while confirming the order of the lower appellate forum? (iii) Whether on the facts in the circumstances of the case learned Tribunal was under legal and statutory duty to record reasons of its own while dismissing the appeal? (iv) Whether on the facts in the circumstances of the case learned Tribunal has failed to apply its mind while concurring with the conclusion drawn by the first appeal authority? (v) Whether on the facts in the circumstances of the case learned Tribunal has misdirected itself in confirming the order of first appellate authority without recording any reasoning? (vi) Whether an appeal can be dismissed summarily rejected without application of mind? (vii) Whether on the facts in the circumstances the learned Tribunal was right in ignoring the provisions of Rule 8(4) of the Wealth Tax Act while determining value of properties under mortgage?

2. The assessee an individual filed his wealth tax return relevant to the assessment year 1999-2000 declaring (minus) net wealth at Rs.3,18,17,

245. In the statement so filed one residential house at Mela Ram, Lahore and a commercial property known as Al-Minar Market, Lahore measuring 15 Marlas and 150 sq. ft. were declared at Rs.15,00,000 and Rs.2,15,000 respectively. The Assessing Officer rejected the claim of the petitioner that both properties being mortgaged with financial institutions needed to be evaluated in accordance with sub-rule (4) of rule 8 of the late Wealth Tax Rule, 1963. Therefore, the claimed liability in respect of these properties at Rs.3,87,000 was disallowed. Thereafter he proceeded to assess these properties respectively at Rs.75,00,000 and Rs.4,00,00,

000. The assessee filed an appeal before the Commissioner of Income Tax (Appeals-IV), Lahore, which was partly allowed on 2-11-2000. The learned First Appellate Authority only reduced the estimated value of the first property to Rs.70,00,000 and that of the second property at Al-Minar Market to Rs.3,50,00,

000. On the issue of (sic) Wealth Tax Rules, 1963 the matter was remitted/remanded to the Assessing Officer for his reconsideration on production of proper proof of the claimed liability.

3. It is stated that in further appeal the learned Tribunal failed to rule upon the issues raised before them. Particularly with regard to the disallowance of claimed liability and the assertion that both properties could be assessed only under sub-rule (4) of rule 8 of the late Wealth Tax Act, 1963. Learned counsel for the appellant in support of his submission that a miscarriage of justice has occurred on account of failure on the part of the learned members of the Tribunal to address all the issues raised before them relies upon in re: Ghulam Hussain v. Jamshaid Ali and others (2001 SCMR 1001) and in re: Abdul Aziz Khan Niazi v. Federation of Pakistan (The Chairman, C.B.R.), Government of Pakistan, Islamabad and 3 others 1995 PTD 1087.

4. We have heard the learned counsel for the parties. Learned Members of the Tribunal, as correctly pointed out by the learned counsel for the appellant maintained the estimated value of two properties in question after finding them to be fair. At the same time they maintained the remand of the issue of liabilities by the CIT (Appeals) to the Assessing Officer. Learned counsel for the appellant contends and we will agree that the learned Members of the Tribunal ought to have ruled upon the legal issues if the two properties in question could be evaluated/assessed only under sub-rule (4) of rule 8 and not under sub-rule (3) of that rule. The remission of the matter to the Assessing Officer to seek supporting documents of claim of liability could be fruitful only if in principle the applicable rule was identified by the First Appellate Authority or the Tribunal. The order of the CIT (Appeals) as maintained by the Tribunal as a matter of fact suffers from apparent contradiction inasmuch as on one hand the estimated value under rule 8(3) has been maintained while the Assessing Officer has been directed to probe into the liabilities. That probing into the liabilities for seeking documentary evidence in proof of the liability would necessarily be an exercise in futility as the estimated value made by the Assessing Officer under Rule 8(3) has already been maintained. The learned members of the Tribunal, therefore, need to address the aforesaid as well as other issues raised in the grounds of appeal before them.

5. Therefore, we will allow this appeal by setting aside the impugned order of the Tribunal, dated 21-12-2002. The appeal filed by the assessee before them shall be deemed pending for decision afresh after hearing the parties and keeping in view the observations made by us in the previous para. H.B.T./A-395/L Appeal allowed.