1995 PLP (Trib (PTD)

NASIM SIKANDAR (JUDICIAL MEMBER).

These, appeals for the years 1975-76 to 1983-84 assail a consolidated order recorded by the C.I.T.(A), Zone-2, Lahore on 22-12-1987. In the grounds of appeal legal as well as factual objections to the orders of the authorities below have been taken.

2. Learned counsel for the assessee is present and has been heard. Learned D.R. has failed to appear in spite of proper service on the Revenue. Therefore, these appeals are taken up for disposal by resort to Rule 20(2) of the Income Tax Appellate Tribunal Rules, 1981. ,

3. The assessee in this case is an individual and derives income from property known as Khurshid Market, Rahim Road, Anarkali, Lahore. After being served with notices under section 65 for the assessment years 1975-76 to 1978-79 and under section 56 for the years 1979-80 and 1985-86 returns were filed to declare income at various rates during the years under reviews. The assessing officer discarded the declared receipts and proceeded to estimate incomes at various sums in all these years. On challenge before the appellate authority the case was set aside in all these years and remanded to the assessing officer for de novo proceedings in accordance with' law and as warranted by the facts of the case.

4. Learned counsel for the assessee contends and we tend to agree with him that the learned first appellate authority did nothing except to reproduce the grounds of appeal and then to express its agreement with some of them to remand the case. The order so recorded hardly comes up to the requirements of an appellate order. In a number of cases the superior Courts as well as this Tribunal has laid down the requirements to be fulfilled by any authority exercising judicial or quasi-judicial powers. In PLD 1970 SC 173 re: Mullah Ejhar Ali v. Government of Pakistan their Lordships of the Supreme Court held that reasons must be given by appellate authority while disposing of appeals. It was also found that failure to record reasons for an order is indicative of arbitrariness of thought and mind. The same view was expressed by a Division Bench of the Lahore High Court in PLD 1993 Lahore 706 Brigd. (Retd.) Mazhar ul Haq and another v. M.C.B., Islamabad.

5. The other aspect of the impugned order also requires specific mentioning. This is the order of remand without there being any apparent reason for the same. In a recent case decided by this Tribunal and reported as (1994) 69 Tax 198 (Trib.) we have deprecated the practice of frequent remands by the appellate authorities when all the facts and evidence is available on record. It was recorded as under:

. "In case of remand, it is necessary that not only the grounds of remand but also the subsequent proceedings should by crystalised. It appears a common practice amongst the first appellate authorities that they remand the cases by using vague directions such as `proceedings should be conducted de novo?. It also appears that except for a negligible number, in all such cases, original assessments are repeated after remand. In most of these cases a remand order with direction for de novo' proceedings is only an eye-wash and manifests shyness of the appellate authority to decide for or against an assessee and to give a clear and outspoken finding. The orders framed on remand are also a mere formality without any serious attempt on the part of the assessing officer to look into the spirit and reasons necessitating remand. It is, therefore; desired that setting aside and remanding of assessments should be avoided as far as possible. Mere use of the phrase `de novo' without elaborating the exact nature, scope and the involved steps or phases of subsequent inquiry, if any, does not mean anything. These type of remand orders are, in the long run never to the benefit of either the assessee or the Revenue. The law is absolutely clear in this regard that no remand should normally be ordered when the appellate authority could itself dispose of the matter on the basis of material available before it. However, when a remand is absolutely necessary in view of a peculiar situation in a case, the scope and parameters must be expressly delineated so that the assessee as well as the assessing officer are well aware of the nature and the extent of further inquiry desired by the appellate authorities."

6. In cases of remand it is necessary that not only the grounds of remand but also the subsequent proceedings should be crystalised. In such like situation it is also difficult for the next appellate authority to render a decision on facts without there being a discussion on merits by the intervening appellate forum. That in a way becomes a direct appeal to the second appellate forum. We find ourselves in an identical situation and with the similar handicap.

7. Judging the appellate order in the light of the aforesaid views of the Superior Courts as well as this Tribunal we find that there was no legitimate reasons f6r remanding of the case. At least none appears from the impugned order. The facts and evidence as pointed out by the learned counsel for the assessee were available on record to enable the appellate authority to decide the matter without pushing the assessee into second round of proceedings. All the more so when the matter pertains to the years as back as 1975-76 to 1984?

85. Accordingly we will set aside the impugned order and send the case to the first appellate authority for recording of a detailed and reasoned order on each and every ground of appeal taken before it. 8.It is so directed. M.BA./119/T?????????????????????????????????????????????????????????????? Order accordingly.