1989 PLP 917 (PTD)

(2) For the purposes of subsection (1),-- (a)??????? "house property" means any property consisting of any buildings or lands appurtenant thereto of which the assessee is the owner, but does not include any such property (or any portion thereof) which is occupied by the assessee for purposes of any business or profession carried on by him the profits whereof are chargeable to tax under this Ordinance: and (b)??????? "Annual value' of any property shall be deemed to be the sum for which the property might reasonably be expected to let from year to year. Provided that where the property is let out on rent, the annual value shall not be less than the rent payable by the tenant. (3) Nothing contained in this section shall apply in the case of any such property, which is m the occupation of the owner for purposes of his own residence.? 8.???????? It is also pertinent to reproduce Rule 5 of the Income Tax Rules, 1982 governing the provision of accommodation free of charge to a salaried employee, in accordance with the prescribed condition. "Rule 5.Rent-free unfurnished accommodation'--Where' rent-free accommodation is provided to an employee, there shall be included, in the total income of such employee, an amount calculated as under:- (a) Where the annual value of the accommodation does not exceed an amount equal to forty-five per cent of the minimum of the time scale of his basic salary. Amount to be included in the total income (b)??????? Where the annual value of the?????????????? accommodation exceeds an, amount equal to forty-five per cent of the minimum of the time scale of his basic salary.? So much of the amount as exceeds forty-five per cent of the minimum of the time scale of his basic salary, so however, that the said amount shall not exceed a sum equal to ten per cent of his salary: Provided that where there is no time scale the basic salary of a particular employee against a particular post or, office shall be construed to be the minimum of the time scale of? basic salary." "Where any house rent allowance is receivable by' the employee in addition to the benefits referred to in rule 5, 6, 7 or 8, the whole amount of the allowance shall be added in his income in addition to the amount computed under any of the said rules:' In this view of the matter, we feel that the income of the person living in such a house would be computed firstly under section 19 of the Ordinance and secondly on account of the value of the perquisites of having a rent free accommodation provided by the employer under section 16 of the Ordinance and this would not amount to double taxation of the income of an employee as in case an owner of the house had been extended facility of an another residential accommodation by his employer, it would have also been charged to tax in his hands as a perquisite, in addition to the tax leviable under section 19 of the Ordinance in case a house was tot out to an another person.

10. In view of the above discussion we hold that rent received by the respondent was rightly taxed by the Income Tax Officer. The learned A.A.C. ordered deletion of the property income on an entirely different ground of the house being newly-built and exempted from tax for five years under clause 58 of Part I of First Schedule to the Ordinance. This is a point of fact, which was never Under the circumstances such a claim could not have seen entertained by the learned A.A.C. in view of `restriction placed by section 131 (4) of the Ordinance which is reproduced below:- "131 (4) ....The Appellate Assistant Commissioner shall not admit any documentary material or evidence which was not produced before the Income Tax Officer, unless he is satisfied that the appellant was prevented by sufficient cause from producing such material or 'evidence before the Income Tat Officer."

11. Since there is no evidence on record to show that the respondent was prevented by sufficient cause from producing relevant material before the I.T.O. the learned A A C was not justified in admitting any evidence not produced before the I.T.O. The order of the learned AA.C. is, therefore vacated.

12. The next question that demands our attention is whether a legal claim of exemption, which subsequently proves to be wrong, falls within the definition of concealment as provided under section 111 (2) of the Ordinance. For facility of ready reference the above provision of law is reproduced hereunder: "111: Penalty for concealment of income, etc: (1) Where., in the course of any proceedings under this Ordinance, the Income Tax Officer, the Appellate Assistant Commissioner or the Appellate Tribunal is satisfied that any won has, either in the said proceedings or in any earlier proceedings relating to an assessment in respect of the same income year, concealed his income or furnished inaccurate particulars of such income, he or it may impose upon such person a penalty not exceeding two and a half times but in no case less than the amount of tax which would have been avoided if the income as returned by such person had been accepted as the correct income. (2)??????? For the purposes of subsection (1) and section 119, concealment of income or the furnishing of inaccurate particulars of income shall include- (a)??????? the suppression of any item of receipt liable to tax in whole or in part claiming any deduction for, or showing any expenditure not actually incurred:

13. From the plain reading of the above legal provisions it is evident that the onus clearly lays on the revenue to show that income returned by an assessee is not his true income. In the instant case the revenue has failed to bring on record any evidence of furnishing inaccurate particulars, of income. In fact the assessee had himself declared a receipt out of property income but had claimed exemption under a mistaken notion of law, which has now been clarified by us. We, therefore hold that a legal claim of exemption under a mistaken notion of law would not fall within the definition of concealment in terms of subsection (2) of section 111 of the Ordinance.

14. Regarding the claim of acceptance of return under the Self-.Assessment Scheme, since we have already held that this was not the case of concealment and the return did not suffer from any infirmity or disqualification as enlisted under para `4' of Circular No.5 of 1984 of the Self-Assessment Scheme for 1984-85, the I.T.O. should have accepted the declared version under section 59 (1) of the Ordinance and then- treating it as a case of under assessment of income should have invoked the provision of section 65 of the Ordinance in order to bring the rental income to charge alongwith the income from salary in the instant case. The I.T.O. is therefore, directed to follow the observations as made supra. ? ???????????

15. The appeal is disposed to the' extent and in the manner as indicated above. ???????????

16. I have gone through the eloquent order proposed to be delivered by the learned Accountant Member Mr. Junejo M. lqbal and with due respects to his above order I. am unable to persuade myself to agree with his finding with regard to the exemption of Annual Letting Value of the house property in view of the provisions of Section 19(3) of the Ordinance, and 1, therefore propose to give the reasons for the difference of opinion. The facts, of the case have been mentioned in detail in the order proposed to be delivered by the learned Accountant Member, Mr. Junejo M. Iqbal and, therefore it is not necessary to reproduce them. The learned- Accountant Member has also described in detail the contentions raised and the arguments advanced by the learned representatives for the parties and it is not desirable to reproduce them. ?

17. I have heard and considered the arguments of the learned representatives of the parties and have also perused the relevant law as well as the case-law cited by the learned Authorized Representative of the Respondent/Assessee and also have the benefit of going through' the eloquent order proposed to be delivered by the learned Accountant Member. With regard order the question whether in the circumstances of the case the Income-tax Officer was competent to disqualify the case from self-assessment and to set it apart for detailed scrutiny, it is to be observed that this appeal has been filed by the Income Tax Department challenging the order of the Appellate Assistant Commissioner whereby he deleted the rental income in the hands of the Respondent from his income on the ground that it was exempt from charge to tax under clause 68 of part I of Second Schedule to the Income Tax Ordinance (hereinafter referred to as to the Ordinance) and in this appeal the above question could not have been agitated by the Respondent and this Tribunal was under no compulsion to hear the above ground. It was purely discretionary with the Tribunal to allow the above ground to be agitated and argued before it. However, in view of the fact that the issue raised by the Authorized Representative of the respondent questioned the very basis and validity of the assessment made by the Income Tax Officer on the ground that it was illegal and ab initio void and no further evidence was required to be adduced to decide the legal objection we had allowed this issue to be agitated in view of the wide powers vesting in this Tribunal within its own jurisdiction as has been held in, the case of C.I.T. v. Steel Cast Corporation reported in (1978) 37 TAX 299

18. The question which requires to be determined is whether an assessee who in his Return claims exemption in respect of certain income/receipt from charge to tax can be said to have concealed his income so as to authorise the Income Tax Officer to take the Return out of the purview of the S.A.S. and to set it apart for detailed scrutiny. It is an admitted position that the respondent had disclosed the rental income m his Return but had claimed it to be exempt from charge to tax and we fail to understand as to how the Income Tax Officer could have treated it as a case of concealment. Concealment basically implies suppression and to keep secret with a view to obtain some wrong or illegal gain. Section 111 of the Ordinance, deals with concealment of income and subsection (2) thereof defines concealment of income or furnishing of wrong particulars to include:

(a)??????? the suppression of any item of receipt liable to tax in whole or in part; (b)??????? claiming any deduction for or showing any expenditure not actually ??????? incurred; and (c)???? any act referred to in clauses (aa), (b), (c) (d), and (e) of subsection (1) of Section 13. ?

19. From perusal of the above provisions it is clear that there must be suppression of any item of receipt liable to tax or claim of a deduction in respect of expenditure not actually incurred so as to bring the case within the purview of concealment. An assessee who discloses a particular income in his return but claims it to be exempt under a provision of the Ordinance under a mistaken belief or lack of understanding of law or a wrong interpretation of law and in the absence of any intention to defraud or to deprive the Government of its right and due revenue can not be said to be guilty of concealment and the Income 'Fax Officer, committed a grave error in treating the rental income claimed to be exempt by the respondent as concealment and disqualifying the Return from the S.A.S. Here we may refer to the case decided by this Tribunal reported in 1988 P.T.D. 987 which has been relied upon by the learned Authorised Representative of the respondent in support of his contention. It has been laid down in the above case that a return qualifying for self-assessment should not be disqualified from the purview of the S.A.S. and set apart for detailed scrutiny unless exceptional circumstances exist for doing so and that too after a careful examination of all the facts and aspects of the case. From perusal of the facts and material on record it is evident that the Income Tax Officer did not apply his mind properly and excluded the return from the scope of the SA.S. Without consideration of the facts of the case and the relevant S.A.S. applicable? to the assessment year in dispute. The proper course in the circumstances of the case for the Income Tax Officer was to finalize the assessment under the S.A.S. and if he did not find the claim of exemption of rental income from charge to tax to be proper and valid then to issue a notice u/s 65 of the Ordinance for additional assessment on the ground that total income was subject to excessive relief. ?

20. The second question which requires consideration is whether the rental income in the hands of the Respondent/Assessee was exempt from tax under section 19(3) of the Ordinance on the ground of self-occupation of the house in dispute by the Respondent/Assessee, who is also the owner of the house. Section 19(3) of the Ordinance grants exemption from charge to tax the income from house property, which is in the occupation of the owner for the purpose of his own residence.

21. In order to examine this question in its true perspective it will be useful to reproduce section 19 of the Income Tax Ordinance which is as under: S.19. Income from house property: (1) the annual value of property shall be chargeable under the head "Income from house property" (2) For the purposes of sub-section (1). (a) "house property means any property consisting of any buildings or lands appurtenant thereto of which the assessee is the owner, but does not include any such property (or any portion thereof) which is occupied by the assessee for purposes of any business or profession carried on by him the profits whereof are chargeable to tax under this Ordinance; and (b) ?????? "annual value" of any property shall be deemed to be the sum for which the property might reasonably be expected to let from year to year: Provided that where the property is let on rent, the annual value shall not be less than the rent payable by the tenant (3) ?????? Nothing contained in this section shall apply in the case of any such property which is in the occupation' of the owner -for purposes of his residence.

22. From a bare perusal of Section 19 of the Ordinance it is revealed that the annual value of property is chargeable to tax under the head "Income from house property". The words "house property" have been defined in subsection (2) (a) of Section 19 of the Ordinance to mean any property consisting of buildings or lands appurtenant thereto which are owned by the assessee. The above definition extends to residential houses, shops, offices and? open plots of land and the annual letting value of all of them is to be charged to tax " as income from house property". The term "annual value" has been defined in subsection (2) (a) of Section 19 of the Ordinance to mean the sum of money for which the property might reasonably be let out from year to year. This sum for which the property might be let but for a year is to be deemed as "Income from house property" and is to be included in the total income of the owner of the property for charge to tax under section 19 of the Ordinance. From examination of the proviso to subsection (2) (b) of Section 19 of the Ordinance, it is revealed that actual letting out of the property is not contemplated for charging the annual letting value of the property to tax and the fact that the owner receives no income in fact or even that there is no possibility of his receiving an income is irrelevant for consideration of the question of statutory income of an assessee from his property. Thus a sum of money, which it can reasonably be expected to fetch from year to year i.e., the Annual Letting Value of the property is to be treated as the income of the owner of that property and is to be charged to tax. However, by virtue of the proviso to subsection (2) (b) of Section 19 of the Ordinance where a property is let out on rent then the annual value of the property shall not be less than the rent payable by the tenant. Thus, where a property is let out on rent by its owner the annual rent received by him shall be treated as his "Income from house property" and shall be charged to tax instead of the sum of money which it may be expected to fetch. Section 19 of the Ordinance laid down two instances wherein the annual letting value of a property shall be exempted from charge to tax. These instances are enumerated in subsections (2) (a) and (3) of Section A of the Ordinance. Subsection (2) (a) of Section 19 of the Ordinance excludes a property (or any portion thereof) from the definition of "house property" which is occupied by the owner/assessee for the purpose of carrying on any business or profession. They?re in and the profits earned or the income accruing from the business or profession so carried on is chargeable to tax under the Ordinance. The second instance is enumerated in subsection (3) of Section 19 of the Ordinance by virtue of which a property, which is in the occupation of the owner for the purpose of his own residence, has been exempted from charge to tax in respect of its annual letting value. Thus the annual letting value of any property, which is occupied by the owner for his own residence, shall not be charged to tax.

23. After having minutely examined the provisions of Section 19 of the Ordinance will now proceed to consider the question as to whether the sum of money received by the respondent as annual rent from his employer M/s.N.B.P in respect of his house property would be exempt from charge to tax in view of the provision of subsection (3) of Section 19 of the Ordinance. In order to claim exemption of the annual letting value of a property from charge of tax under subsection (3) of Section 19 of the Ordinance, it is imperative that it must be occupied by the owner for his own residence. The question to be determined here is whether occupation of a property by its owner for his own residence who had let out the property in dispute to his employer and received rent from the employer could be deemed to be the occupation by the owner. The learned Departmental Representative submitted that the right of the owner to occupy his property is taken away from him after he leases out his property and the same is vested in the lessee who becomes entitled to occupy it either himself or to induct some other person on his behalf to occupy it as per terms of the lease agreement. He further submitted that in the present case M/s. N.B.P. obtained the property of the Respondent on lease for providing accommodation to its employees and thereby the respondent ceased to have the right to enjoy occupation of the property in dispute which stood transferred in favour of M/s.N.B.P and the subsequent occupation of the respondent of the said property with the permission of M/s.N.B.P. could not be deemed to be that of the owner of the property and his occupation of his own house/property thereafter was in his capacity as an employee of the lessee, M/s.N.B.P. with their permission. Thus the property in dispute could not be said to have been occupied by the owner for his own residence and that its annual letting value could not be exempted from charge to tax in view of subsection (3) of Section 19 of the Ordinance. The contention advanced by the learned Departmental Representative is without any substance. There is no dispute that the Respondent continued to be the owner of the property and only his right to occupy it as owner for his own residence had been taken away from him during the subsistence of the lease agreement. Subsection (3) of Section 19 of the Ordinance exempts annual letting value of a property from charge to tax if it is occupied by the owner for the purpose of his own residence. A perusal of subsection (3) of Section 19 of the Ordinance reveals that the only requirement for exemption of the annual letting value of a property is that it should be occupied by the owner for his own residence. It does not contemplate that the occupation of the owner should be in his capacity as owner of the property. In imposing the condition that the exemption of the Annual Letting Value of a property from charge to tax will be available only if the property is occupied by the owner for his own residence in his capacity as owner will amount to giving a different meaning than what the legislature has intended to give. In interpreting the provisions of a statute the courts are required to construe the same according to the plain language used by the legislature, to where the language used is clear and unambiguous and not capable of any other construction irrespective of the absurdity of the result. According to the established principle of interpretation of statute laid down by the Superior Courts in the cases decided by them, the guiding principles are that meaning of a section or a provision of a statute should be ascertained from the plain language used in the statute without reading anything which is not there and implying that the legislature intended some thing which the words used do not spell or make out. The Supreme Court of Pakistan in the case of Commissioner of Agriculture Income Tax v. B.W.M.Abdur Rehman reported in (1974) 29 Tax 212 held: "in determining whether or not a particular matter comes within a taxing statute, it is only the letter of law which must be looked into and there is ample authority for the proposition that in fiscal cases form is of primary importance, the principle being that if the person sought to be taxed comes within the letter of the law, he must be taxed however great a hardship may thereby be involved but on the other hand if the Crown cannot bring the subject within the letter of the law he is free however apparent it may be that his case comes within what might be called the spirit of the law'' A similar principle was laid own by the Supreme Court in the case of Hirjina Co. Pakistan Ltd. v Commissioner of Sales Tax Central reported in (1971) PTD200 wherein their Lordships observed: "We may have observed that in interpreting the taxing statute the Court must look to the words of the statute and interpret it in the light of what is clearly expressed. It cannot imply any thing which is not expressed, it cannot import provision in the statute so as to support deficiency". After taking into consideration the law laid down above by the Supreme Court in interpreting taxing and fiscal statutes, the only interpretation which can be had of subsection (3) of Section 19 of the Ordinance is that the Annual Letting Value or the annual rent received by an owner of a house property will be exempt from charge of tax provided that the property is occupied by the owner for his residence. It is absolutely immaterial and of no consequence as to in what capacity the owner occupies it. Even if he occupies the property for his residence as a licensee or as an employee of the employer who has obtained the property on lease and pays rent to him the benefit of sub-section(3) of Section 19 will continue to be available to him and the rent received by him will not be subjected to tax.

24. An argument was advanced by the learned Departmental Representative that if the above interpretation of sub-section (3) of Section 19 of the Ordinance was adhered to then it would result in a very heavy loss of revenue to the Government inasmuch as all the owners of house properties who are occupying their own properties not in their capacity as owners but as licensees or employees of their employers/lessees would get exemption from charge to tax the rent received by them. The contention is without any substance as in interpreting the provisions of fiscal or Revenue laws the Courts will construe them strictly in accordance with the ordinary grammatical meaning which is more favourable to the subject and will not resort to the interpretation favourable to State merely on the consideration that the interpretation in favour of the subject if adopted then a huge amount of money will escape or will be taken out of the purview of taxation. In support of the above proposition reliance is placed on the case of Highlands Manufacturers (Pak) Ltd. v. Commissioner of Income Tax (West) Karachi decided by the High Court Sind and reported in 1984 P T D

250. It will be useful to reproduce the relevant observation from the above judgment which is as under: "Provision of such statutes to be strictly construed and should be interpreted in a manner which was more favourable to the subject. Court cannot take a view more favourable to State merely on consideration that if such interpretation was followed bulk of taxable money will be washed off. Courts can hardly, assume them selves position of saving income from escaping taxation."

25. From the above discussion there cannot be an iota of doubt that the owner of a house property in occupation of the same for his residence will be entitled to seek the benefit of subsection (3) of Section 19 of the Ordinance irrespective of the nature or the capacity in which he occupies the house property and Annual Letting Value or the rents received by him will be exempt from charge to tax. By adopting any other interpretation or the interpretation to the effect that exemption under subsection (3) of Section 19 will be available to an owner who had not leased or rented out his house property and is occupying the same for his residence in his capacity and right as an owner, this Tribunal would be assigning a meaning'-which cannot be spelt out from the wordings of subsection (3) and which the legislature did not intend to give. Not only this, but the Tribunal in arriving, at the above interpretation would be adding words and relying on the meaning of the words which the legislature had neither used nor intended to borrow their meaning in interpreting the above provision and such an interpretation would be against all canons principles of interpretation of statues. However, in this case provisions of Rule 5 of the Income Tax Rules will be applicable. Rule 5 of the Income Tax Rules provides that where rent free unfurnished accommodation is provided to an employee by his employer then- an amount equal to ten per cent of the employee's salary will be added to his income where the annual value of the accommodation exceeds forty five per cent of the minimum of the time scale of his basic salary. The above arrangement entered into between the respondent and M/s. N.B.P. was in the nature of providing rent free unfurnished accommodation to the respondent by his employer and would fall within the ambit of Rule 5 of the Income Tax Rules and thus an amount referred to above would be added to his income which the respondent had himself done.

26. I will now proceed to discuss whether the plea of exemption from charge to tax could be raised by the respondent in respect of the rent received by him from M/s. N.B.P. before the Appellate Assistant Commissioner on a different ground and footing than the one taken before the Income Tax Officer. The Respondent having made a claim of exemption of "Income from house property" from charge to tax in view of the provisions of clause 68 Part 1 of the Second Schedule, the question need to be examined in depth and it will be useful to reproduce the above clause 68 which is as under: "Any income chargeable under the head "Income from house property" in respect of a building not being a building to which clause (69) applies, the creation of which is completed at any time between the first day of July, 1981 and the thirtieth day of June 1985 (both days inclusive) and the building is intended to be and is actually used for residential purposes only for a period of five years from the date of such completion subject to the following limits, namely: (i) Where the annual value of such building does not exceed eighteen thousand rupees. The whole -of such value. (ii) Where the annual value of such building exceeds eighteen thousand rupees. Nine thousand rupees

27. From a bare reading of the above clause it is beyond any doubt that income chargeable under the -head "Income from house property" has been exempted from charge -to tax in respect of a property/building other than a property/building referred to in clause 69 above the construction of which was completed during any time of the period from 1-7-1981 to 30-6-1988 (both days inclusive) for 3 period of five years provided that the property/building was meant or intended to be used and was actually used for residential purpose only, However, the question to be determined is whether the Appellate Assistant Commissioner committed any illegality in admitting the plea of exemption raised by the respondent on the basis of clause 68 Part-I of the Second Schedule to the Ordinance. The plea of exemption from charge to tax was not raised for the first time by the respondent before the Appellate Assistant Commissioner inasmuch as it was raised before the Income Tax Officer but the exemption was claimed on the basis of the provisions of Section 19 (3) of the Ordinance while before the Appellate Assistant Commissioner it was claimed on the basis of the provision of clause 68 above. The learned Appellate Assistant Commissioner thus in considering the above ground allowed the respondent to raise a fresh ground? which it appears was not raised before the Income Tax Officer in contravention of the provisions of Section 131 (2) of the Ordinance. From perusal of the record it is also not ascertainable as to whether the respondent had produced the necessary evidence in support of the above ground before the Income Tax Officer and the same was ignored by him. If it was not produced before the Income Tax officer then the same should not have been allowed to be produced by the Appellate Assistant Commissioner before him unless the respondent could justify its non-production before the Income-tax Officer in view of the provisions of Section 131 (4) .of the Ordinance. The question of exemption though was a legal question yet it was to be decided on the basis of documentary evidence, which could not have been allowed to be admitted at the first appellate stage and in doing so the Appellate Assistant Commissioner acted in contravention of the provisions of law and if any authority is required in support of the above observation then reliance can he placed on the order of I.TA. Nos. 1615 & 1616/KB of 1981-82 reported in 1986 P T D 58 wherein it was held that before admitting any documentary material or evidence the Appellate Assistant Commissioner should have satisfied himself that the respondent was prevented by sufficient cause from producing such evidence before the' Income Tax Officer.

28. From the above discussion, the position, which emerges, is this that the Income Tax Officer had acted illegally in taking the case out of the purview of the SA.S. and assessing it under detailed scrutiny and disallowing the rental income claimed to be exempted under Section 19 (3) of the Ordinance. The claim of exemption of the rental income from charge to tax on the ground of personal occupation was well founded and should have been allowed. Even if the Income Tax Officer did not consider the claim of exemption to be valid and proper he should have finalized the assessment under the Self Assessment Scheme under Section 59 (1) of the Ordinance and, thereafter, could have re-opened the case under section 65 of the Ordinance for determining the validity or otherwise of the claim of exemption. The learned Appellate Assistant Commissioner also erred in allowing a fresh ground in accepting evidence which was either not produced? before the Income Tax, Officer or if produced was not brought to his notice. Thus, both the orders of the officer below suffer from illegality and cannot be sustained.

29. In?? view of the above I vacate the order of the learned Appellate Assistant Commissioner and direct the Income Tax Officer to accept the return under section 59 of the Ordinance. The appeal is disposed of accordingly. As per Chairman: As per Chairmain:

30. I has privilege of going through the orders proposed by my learned brothers. However, with due respect I think that the learned JM has correctly interpreted the provisions of subsection (3) of Section 19 of the Income-tax Ordinance. I respectfully agree with him that if an owner of a property occupies it for the purposes of his own residence, the provisions of subsections (1) and (2) would not apply in his case. The confusion appears to have arisen in this case because the owner has also assumed the character of the lesser. However, I do not think that this fact leads to another interpretation. In my judgment an owner would remain an owner notwithstanding the fact that he assumes the character of a lessor or mortgagor also. In fact an owner only can become a lessor or mortgagor. Moreover, subsection (3) does not lay down that a property should remain in the occupation of an owner for the purposes of his own residence in his capacity of an owner. From plain reading of this subsection it appears that in order to make subsections (1) and (2) of Section 19 in applicable only twos conditions are to be met with namely. (i) ??????? The occupant should be the owner of the property and (i) the occupation should be for the purposes of his own residence. Here under the facts and circumstances of this appeal, both the conditions appear to have been met with. 1f we ask the question that is the owner? The answer comes that the respondent is the owner. If we put the second question as to whether he is occupying the house for the purposes of his own residence? The answer again comes in the affirmative. Thus, both these answers clinch the issue in favor of the respondent. In my judgment the law has laid emphasis on the ownership and not on any other character of, the owner, which can co-exist along with .his ownership i.e. he may also be a lessor or mortgagor. Since subsection (3) of Section 19 does not lie down that the occupation of a property should be for the purposes of the residence of the owner in the same capacity. I am not prepared to read it in between the lines. After all it is a fiscal statute the legislature, however, may amend subsection (3) of Section 19 in order to restrict its application to the owner of a property if he occupies it for the purpose of his own residence in the same capacity.

31. Since all of us agree that the I.T.O. should accept the return under section 59 (1) of the Income Tax Ordinance, the departmental appeal, therefore, appears to be devoid of any merits and is rejected accordingly. The I.T.O. is directed to accept the return under section 59 (1) of the Income tax Ordinance. M.BA./636/T?????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.