2008 PLP 1351 (PTD)

(ii) The assessments relating to years 2000-01 to 2002-03 have merged into order of CIT(A), so the DCIT cannot reopen the assessments. (iii) The Karachi High Court has held in a case reported as 2004 PTD 1901 that misapplication of law and ignorance of law or decision of superior Courts would not furnish ground for reopening the assessments, hence the application of section 122 of the Income Tax Ordinance, 2001 is void ab initio and illegal. (iv) In the proceedings under section 122 of the Income Tax Ordinance, 2001 the respondent has issued notice of demand under section 132 mentioning therein refund of Rs.29,42,594 relating to tax year 2004 which means filing of proceedings for assessment years 2000-01 of 2002-03 and for tax years 2003 to 2004. (v) The impugned action of the Taxation Officer falls under the ambit of `maladministration' hence this complaint. The complainant has requested that the respondent be directed to issue refund, voucher of Rs.1,03,71,247 along with appropriate compensation.

2. In the parawise comments the RCIT, Eastern Region, Lahore has raised the following preliminary objections: (i) No maladministration is spelled out from the contents of complaint, hence it is not entertainable by the F.T.O. The complaint is against proceedings under section 122 of the Income Tax Ordinance, 2001 for which legal remedy of appeal is available to the complainant. (ii) The action complained against is protected by section 3(i)(a) of the F.T.O's. Ordinance, 2000. Hence, the complaint merits dismissal. (iii) Maladministration connotes some misbehavior such as perversion, arbitrariness, corrupt motive etc. Where in respect of a process or decision the law provides remedy before ordinary Courts and Tribunal, to F.T.O. has no jurisdiction. On the factual side it is submitted that the position of assessed income is as per record. The claimed refund is subject to verification of original challans at the time of issuance of refund. The assessments in this case were finalized under the normal procedure treating the complainant as manufacturer and the tax deducted at import stage as adjustable which resulted in claimed refund of Rs. 1,03,71,

247. Whereas the income of taxpayer is to be assessed under presumptive tax regime, therefore, the impugned proceedings are in accordance with the legal provisions.

3. In the hearing of the complaint on 12-9-2005 the complainant was represented by Mr. M. Shahid Abbas, Advocate and respondent was represented by Mr. Muhammad Tahir (DCIT) who reiterated the arguments contained in the parawise comments. The AR of the complainant submitted that as the assessments for years 2000-01, 2001-02 and 2002-03 were finalized on 11-2-2002, 6-1-2003 and 28-6-2003 respectively, therefore, they could not be reopened under section 122(5A) of the Income Tax Ordinance, 2001 in view of the judgment of the Karachi High Court reported as 2005 PTD 1316.

4. Regarding tax year 2003 he submitted that the Taxation Officer, Circle 10, Companies Zone-II, Lahore vide order dated 12-4-2004 under section 122 of the Income Tax Ordinance, 2001 had created refund of Rs.20,32,556 and under section S.122(4)(b) supra it could be amended within one year' after the Commissioner had issued the amendment assessment to the taxpayer. But in this case the notice to further amend the assessment was issued on 3-5-2005 and the re-assessment was not completed upto 30-6-2005 i.e., within the prescribed time and it cannot be done now.

5. The refund of Rs.29,42,591 has also been determined for tax year 2004 by the DCIT vide order dated 15-7-2005 which means that the notice under section 122 for amendment of assessment for tax year 2004 stands withdrawn/cancelled. So the complainant is entitled to the claimed refund and the proceedings initiated under section 122 of the Income Tax Ordinance, 2001 amount to `maladministration'.

6. The AR of the complainant has submitted valid arguments which counter the contentions of the respondent. Therefore, the preliminary objections raised by the respondent are overruled. The ratio of the decision of the President of Pakistan in C. No.36 of 2003 that refund cannot be withheld on account of expected tax liability is applicable to the instant complaint.

7. In view of the findings in the preceding para. it is recommended that:- (a) The refund of Rs.1,03,71,247 pertaining to assessment years 2000-01, 2001-02, 2002-03 and tax years 2003 and 2004 be issued as per law. (b) Compliance to be reported within 30 days from the date of receipt of the findings. C.M.A./34/FTO Order accordingly.