1993 PLP (Trib (PTD)

" Though there is nothing in the Act which required the ITO to disclose the assessee the material on which he proposes to act or to refer to it in his order, natural justice requires -- and he should conduct his proceedings in accordance with natural justice. He should draw the assessee's attention to any such material and give him a reasonable opportunity to meet the case arising there from before making his order. Further, as an order under section 23(3) is appealable, that order should contain with sufficient precision, the material on which the assessment is based, so that the appellate authority can form a just opinion of the fairness of the assessment. There can, however, be no question of the assessee being entitled to demand copies of confidential statements in. the possession of the ITO or to demand that his informants should be called by the ITO, so that they can be cross-examined by the assessee, and the ITO is not a Court in the usual meaning of that word when he is holding an enquiry under section 23(3). Under section 37 of the Act he has merely certain powers of a Civil Court for the purpose of Chapter IV." (Please see CIT v. Khemchand Ramdas (1940) 8 ITR 159). The learned Judicial Commissioner'& aforesaid words of wisdom finally found favour with the majority of the Larger Bench of Lahore High Court consisting of 5 Judges in the case reported as (1944) 12 ITR 393 (Seth Gurmukh v. CIT, Punjab), Justice Din Muhammad, speaking for the majority, summed up his learned dissertation in the following words: " (a) An ITO is not bound to rely on such evidence produced by the assessee as he considers to be false. (b) He can have recourse to the provisions to section 13 even in those cases where he rejects the accounts produced by the assessee on the grounds that they are not genuine, and thus fail to represent truly his income and profits. (c) If he proposes to make an estimate in disregard of the evidence, oral or documentary, led by the assessee, he should in fairness disclose to the assessee the material on which he is going to found that estimate. (d) He is not, however, debarred from relying on private sources of information, which sources he may not disclose to the assessee at all. (e) In case he proposes to use against the assessee the result of any private enquiries made by him, he must communicate so proposed to be utilised to such an extent as to put the assessee in possession of full particulars of the case he is expected to meet and should further give him ample opportunity to meet it, if possible." (Please see page 416 of Seth Gurmukh Singh v. CIT, Punjab). Justice Munir though disagreed with and dissented from the majority decision on some points yet his Lordship had also to reconcile the controversy in the following words: -- ? ....The only limitation imposed by the subsection on the powers of the ITO is that if he wishes to use any material or any fact within his own knowledge against the assessee he should specify the point to which that material or information relates and give the assessee the right to rebut that material or information?? ????????? (Please see page 425 of Seth Gurmukh Singh case supra).

6. Thus, in view of these two authorities which have been reigning the field for almost half a century there remains no doubt that if the assessing officer, and for that matter any other authority acting under the Income Tax Ordinance, wants to rely on any material against an assessee, it must not only confront him with such material but also should give him an adequate opportunity to rebut it. However, this does not seem to be the end of the controversy. The question still remains as to what extent an assessing officer should make disclosures when he wants to rely on a parallel case? Mr. Aminuddin Ansari insists that the appellant should have been furnished with the copy of the assessment order of the parallel case whereas Mr. Noor Muhammad claims it to be confidential the disclousre of which is prohibited under section 150 of the Income Tax Ordinance.

7. Their Lordships of Indian Supreme Court pointedly faced this typical situation in a decision reported as (1954) 26 ITR 775, Dhakeswari Cotton Mills Ltd. v. CIT. In this case the dispute was regarding application of GP rate. The Income Tax Appellate Tribunal while hearing the appeal directed the D.R. to produce information regarding GP rate shown or assessed in other similar mills and pursuant to this direction he submitted a statement regarding rate of GP of cotton mills varying between 49% and 13%. The learned Accountant Member of the Tribunal, who was hearing the appeal, however, did not divulge this information to the learned counsel for the assessee and their Lordships had to express their surprise in the following words: -- " It is somewhat surprising that the Tribunal took from the representative of the department a statement of GP rates of other cotton mills without showing that statement to the assessee and without giving him an opportunity to show that the statement had no relevancy whatsoever to the case of the mill in question." Consequently, the order of the Tribunal was set aside and the case was remanded back.

8. Before proceeding further let me point out that a parallel case may be deemed to be parallel to another case if the businesses or professions etc. of both are, to put it in the words of M.C. Mahajan, CJ. who spoke for the Supreme Court of India in Dhakeswari Cotton Mills case (supra), "similarly situated and circumstanced". Situation of a business and profession etc. is important because everything otherwise being equal the location of a business in a particular place may make a lot of difference. The circumstances of each business and profession etc. which have been emphasised by their Lordships may be multiple and may vary from each other. Illustrating the point under discussion with reference to the facts of this case, let me point out that a printing press using imported machinery installed recently cannot be said to be "similarly circumstanced" to a case in which the printing machinery is say 25 years old for the simple reason that the wastage of paper and ink in the case of latter would be more than former in addition to lesser turnover of inferior quality product. Similarly, the printing press located in Landhi or Korangi may not be a parallel case to a printing press, which is situated in New Challi or Pakistan Chowk.

9. In view of this discussion it is clear that if an Income Tax Officer confronts an assessee only with the N.T.N. of a parallel case he would not be meeting the demands of natural justice for the simple reason that the assessee would not be in a position to rebut it without knowing its location, turnover, the age of printing machinery, type of printing and the year of assessment. Let me emphatically add that principle of natural justice is not confined to the principles of not condemning a person without hearing him but it also includes within its ambit not only the communication of the material which is to be used against him but insists also on providing an adequate opportunity to him for defending himself by rebutting it.

10. It is to be kept in mind that the income-tax record of an assessee presumably may not be available to another assessee because of the principle of confidentiality and thus he would not be in a position to rebut the facts of that case on which an assessing officer wants to rely. Mr. Ansari has insisted that the Income Tax Officer should have supplied him the copy of the assessment order of the parallel case. However, I feel that he has jumped across the spectrum of confidentiality. The question, then, arises what an assessing officer should do in such circumstances? In my opinion the answer is provided by the case of Dhakeshwari Cotton Mills (supra). In that case the Departmental Representative supplied statement of GP to the Tribunal and I think that this procedure can conveniently and profitably be adopted by the department in our country also. In other words let me observe that if an assessing officer wants to rely upon a parallel case he must prepare statement mentioning therein the essential facts which are to be rebutted necessarily by an assessee. While doing so he should keep in mind the principle of confidentiality and, let me emphasise even at the cost of repetition, that he should disclose only and only those facts which are necessary for an assessee to be confronted with and which do not commit the breach of the principle of confidentiality. What are essential facts and when the disclosure of certain facts would amount to breach of confidentiality are questions which are to be answered by the assessing officer himself and the answer may vary from case to case according to facts and circumstances thereof. Nevertheless, an assessing officer should keep in mind that his order is subject to the scrutiny of appellate forums. He should, therefore, keep a copy of such statement on record of the assessment proceedings, and should also mention it in his assessment order so that it could be established in appeal that he has acted honestly on the material before him. I feel very much tempted to reproduce here the observation of prudence and wisdom made by Justice Munir, an indisputably eminent Tax Judge of this country, in the case of Seth Gurmukh Singh (supra). Explaining the powers of an Income Tax Officer under section 23(3) of the repealed Income Tax Act his Lordship remarked: " ....While making the assessment under that subsection any material which tends to show the assessable income of the assessee is good material on which assessment may be based, provided the assessee's attention has been drawn to that material. But though the I.T.O. has very wide powers and is not fettered by technical rules of evidence and pleadings, there is one overriding restriction on his judgment and that is that he must act honestly on the material, however, inadequate, before him and not vindictively, capriciously or arbitrarily."

11. Now, with this background let me turn to the merits of this case. From perusal of the assessment order it is clear that the assessing officer confronted the appellant with N,T.N.09-24-2221021.. However, there is nothing in his assessment order to show as to with what the appellant was confronted--either only with N.T.N. of parallel case or with something more. I have reproduced the relevant observation of the I.T.O. There is nothing in it to show that the assessing officer confronted the appellant with necessary facts of the parallel case. Mr. Ansari also invited my attention to notice of the I.T.O dated 22-2-1990 which was admittedly served on the appellant. Here again there is nothing in it to indicate that the relevant facts were also communicated. Mr.Noor Muhammad the learned D.R. in reply to a question, concedes that there is nothing in the order-sheet or record to point out the material or substance with which the appellant was confronted. Thus, there remains no doubt that the assessing officer acted in violation of the principle of natural justice.

12. Mr. Noor Muhammad, the learned D.R., however, vociferously argues that I should have presumed that the appellant was confronted with the parallel case as required by law because the Income Tax Officer has mentioned so in his assessment order. The learned D.R. argues that I have no power under section 156 to travel beyond the assessment order and dig into the departmental record. Mr. Aminuddin Ansari, however, fortifies his submission by the case of Khalid Adamjee v. C.I.T. (supra). Let me, therefore, now turn to section 156 and the case relied upon. Section L56 of the Income Tax Ordinance, reads as under: -- "

156. Rectification of mistake.--(1) Any Income-tax Authority or the Appellate Tribunal may amend any order passed by it to rectify any mistake apparent from the record on its own motion or on such mistake being brought to its notice by any other Income-tax Authority or by the assessee. (2) No order under subsection (1), which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall be made unless the parties affected thereby have been given a reasonable opportunity of being heard. (3) Where any such mistake is brought to the notice of any Income-tax Authority by the assessee and no order under subsection (1) is made by such authority before the expiration of the financial year next following the date in which it was so brought to its notice, the mistake shall be deemed to have been rectified and all the provisions of the Ordinance shall have effect accordingly. (4) No order under subsection (1) shall be made after the expiration of four years from the date of the order sought to be amended." The case of Khalid Adamjee v. C.I.T (supra), however, deals with section 35 of the repealed Income Tax Act. I, therefore, reproduce it also as under: -- "

35. Rectification of mistake.--(1) The Commissioner or Assistant Commissioner may, at any time within four years from the date of any order passed by him in appeal or in revision, as the case may be, and the I.T.O, may, at any time within four years from the date of any assessment order or refund order passed by him, on his own motion rectify any mistake apparent from the record of the appeal, revision assessment or refund, as the case may be and shall within the like period rectify any such mistake which has been brought to his notice by an assessee, or in the case an order in appeal, by any party to such appeal: Provided that no such rectification shall be made, having the effect of enhancing an assessment or reducing a refund unless the Commissioner, the Assistant Commissioner or the Income Tax Officer as the case may be, has given notice to the assessee of his intention to do so and has allowed him a reasonable opportunity of being heard. (2) The provisions of subsection (1) apply also in like manner to the rectification of mistakes by the Appellate Tribunal. (3) Where any such rectification has the effect of reducing the assessment the I.T.O. shall make any refund which may be due to such assessee. (4) Where any such rectification has effect of enhancing the assessment or reducing a refund, the I.T.O. shall serve on the assessee a notice of demand in the prescribed form specifying the sum payable, and such notice of demand shall be deemed to be issued under section 29, and the provisions of this Act shall apply accordingly. (5) Where in respect of any completed assessment of a partner in la firm it is found on the assessment or the re-assessment of the firm or any reduction or enhancement made in the income of the firm under section 31 section 33, section 33-A, section 34-A, section 65 or section 66-A that the share of the pier in the profit or loss of the firm has not been included in the assessment of the partner or, if included, is not correct, the inclusion of the share in the assessment or the correction thereof, as the case may be, shall be deemed to be a rectification of a mistake apparent from the record within the meaning of the section, and the provisions of subsection (1) shall apply thereto accordingly, the period of four years referred to in that subsection being computed from the date of the final order passed in the case of the firm. (6) Where the excess profits tax or the business profits tax payable by an assessee has been modified in appeal, revision or any other proceeding, or where any excess profits tax has been assessed after the completion of the corresponding assessment for income-tax, and in consequence thereof it is necessary to recompute the total income of the assessee chargeable in income-tax, such recomputation shall be deemed to be a rectification of a mistake apparent from the record within the meaning of this section, and the provisions of subsection (1) shall apply accordingly, the period of four years referred to in that subsection being computed from the date of the order making or modifying the assessment of such excess profits tax or business profits tax" Explanation.--For the purposes of subsection (6) where the assessee is a firm, the provision of subsection (5) shall also apply as they apply to the rectification of the assessment of the partners of the firm. (7) [omitted by Ordinance]. (8) Where, as a result of proceedings initiated her subsection (1) of section 34, a firm or an association of persons is assessed or red and the I.T.O. concerned is of the opinion that it is necessary to compute or recompute the total income of a partner in the firm or a Member of the Association of Persons, as the case may be, the I.T.O. may proceed to compute or recompute the total income and determine the sum payable on the basis of such computation or recomputation as if the computation or recomputation is rectification of a mistake apparent from the record within the meaning of this section, and the provisions of subsection (1) shall apply accordingly, the period of four years speed therein being reckoned from the date of the final order passed in the case of the firm or Association of Persons, as the case may be." Thus, from perusal of both these sections it is clear that the legislature has not made any substantial departure from the provisions of the repealed Income Tax Act.

13. Now, turning to the case of Khalid Adamjee, it appears that it was argued before their Lordships of Sindh High Court at Karachi that an Income Tax Officer while exercising his power under section 35 of the repealed Income Tax Act has to confine himself to the impugned assessment order. In other words the case of the department was that the mistake apparent should be on the face of the order. The reliance was placed on the provision of Rule 1 of the Order XLVII of Civil Procedure Code. Their Lordship analysing and scrutinising various authorities cited from High Court and Supreme Court of India and Pakistan summed up as under: -- "...Therefore, the Income Tax Officer, while rectifying a mistake or error in the assessment or rebind order under section 35 of the Income Tax Act need not confine himself to the consideration of only those errors which are apparent on the face of the order but could also refer to the record of the proceeding of the assessment or the refund order, as the case may be, to discover the error which is noticed by him or which is pointed out to him by the assessee..."(Please see 1983 PTD 246 at p.252). Let me point out that in this case the assessee disclosed dividend received from the companies whose income was exempt. There was nothing in the return to show as to how much was received from the former and how much from the latter. However, an application under section 35 of the repealed Income Tax Act was moved after a decision of this Tribunal before the Income Tax Officer as this Tribunal has held that the dividend income received by an assessee from companies which enjoyed tax holiday was exempted from the income-tax. In the rectification application the exemption was claimed. However, it was rejected by the Income Tax Officer on the ground that neither in the Returns of Income Tax such exemption was claimed nor the same was raised in response to the notice served under section 23(3) of the repealed Income Tax Act and on appeal his order was confirmed by this Tribunal. On reference it was contended before their Lordships that since the mistake was not apparent from the order the application of rectification was rightly rejected. On the other hand, it was canvassed before their Lordships that the mistake was apparent from the record. However, the finding of fact that no mistake was apparent even from the record was finally upheld for the simple reason that from the return the dividend paid from one type of company was not discernible from the dividend paid by other type of company.

14. Thus, in view of this authority Khalid Adamjee v. C.I.T. (supra) it is clear that the mistake may be apparent from perusal of the record as well as from perusal of the assessment order. I, therefore, sum up: (i) That the assessing officer committed a mistake when he confronted the appellant with only the N.T.N. of a parallel case; and (ii) the mistake was apparent from the record. However, before concluding let me turn to the observation of the learned C.I.T. (A) which has been reproduced above and whereby the learned C.I.T. (A) has expressed his feelings about the application filed after more than 1-1/2 years of the assessment order and that too when the appeal was not filed. It cannot be disputed that the legal acumen and knowledge vary from person to person whether he be an assessing officer or an Advocate. Now if one Advocate fails to detect an error apparent in an assessment order the other may do so. Even sometimes the same person may not see it at the first instance but it may descend upon him subsequently. Admittedly Mr. Ansari was not appearing before the assessing officer. As such, if the authorised representative of the appellant did not advise him to file an appeal it would not bar Mr. Aminuddin Ansari from detecting an error apparent from the record and applying for its rectification. If the application was moved within the prescribed period of limitation and if the case of rectification was made out it was the duty of both the officers below to allow it even if no appeal was filed against the original assessment order. If a person enforces his legal right he cannot be attributed with motive if he succeeds ultimately in establishing his right. I think that the learned C.I.T. (A) has been alarmed unnecessarily while he made the remark reproduced above.

15. Let me also mention here that Mr. Aminuddin Ansari has cited several cases at Bar which I have mentioned above but I do not find them relevant. As such, I have refrained myself from dilating thereon.

16. Now to conclude I find force in this appeal and it is hereby allowed. The impugned order is set aside and the matter is sent back to the Income Tax Officer with the direction that he should confront the appellant with parallel cases in the way as has been discussed above. The appeal stands disposed of accordingly. M.BA/1749/T?????????????????????????????????????????????????????????????????????? Order accordingly.