2014 PLP 1016 (PTD)

CH. ANWAAR UL HAQ (JUDICIAL MEMBER).

The titled appeal pertaining to tax year 2010, has been preferred at the instance of taxpayer calling in question the impugned order dated 11-1-2012, passed by the learned CIR (A), Multan.

2. Briefly stated, the relevant facts are that the taxpayer in this case is a private limited company derives income from manufacturing and sale of cosmetics. The taxpayer being a prescribed person in terms of section 153 of the Income Tax Ordinance, 2001, was under obligation to deduct withholding tax while making payments under different heads. During scrutiny of the record, it was detected by the assessing authority that the taxpayer had failed to deduct withholding tax on payments made under different heads. Accordingly, the assessing authority issued notice under sections 161/205, requiring the taxpayer to furnish evidence/challans etc., regarding tax deduction. During the course of proceedings, the taxpayer-company has failed to satisfy the Assessing Officer with regard to queries raised for non deduction of withholding taxes and proof of payment of tax deductions. Consequently, the assessing authority finalized the orders under sections 161/205 for tax year 2010, by treating the company as "taxpayer-in-default" and accordingly charged tax under section 161 at Rs.481,717 and default surcharge under section 205 at Rs.66,

318. Being aggrieved, the taxpayer went in appeal before the learned CIR (A) who vide impugned rejected the appeal in limine on the ground that the grounds of appeal and memo of appeal were unsigned.

3. It is submitted by the learned AR that the learned CIR(A) was not justified to dismiss the appeal of the taxpayer on the ground that the memo of appeal filed was unsigned. It is contended by the learned AR that the CIR(A) has illegally and unjustifiably dismissed the appeal of the taxpayer on technicalities and not adjudicated the grounds of appeal on merits which action is against the law and various judicial pronouncements of the higher appellate fora. It is also submitted by the learned AR that the assessing officer has erred in law to proceed under section 161 on the basis of fishing enquiries and created illegal and unjustified demand against the taxpayer when the company wherever required has duly deducted tax and deposited the same into government treasury.

4. After perusal of the record, it reveals that the learned CIR(A) has dismissed the appeal of the taxpayer in limine as the appeal papers including memo. of appeal presented before the learned CIR(A) were unsigned. The defect pointed out by the learned CIR(A) is curable and he should have to give an opportunity to the taxpayer to make good the deficiency observed by him. Although there are no expressed provision of law for providing opportunity to taxpayer to remove the deficiencies in memorandum of appeal at first appeal stage. However, rule 15 of the ATIR Rules, 2010, inter alia, provides that where a memorandum of appeal is not filed in the manner specified, the appellant or authorized representative shall be given time to make the same in conformity with the provisions of rules. Therefore, we deem it expedient to remand the matter back to the learned CIR(A) with the direction to the taxpayer to remove the deficiency in memorandum of appeal and the learned CIR(A) is also expected to provide an opportunity to taxpayer to remove deficiency detected in the appeal papers presented before him within 15 days. If the taxpayer has failed to do so then the learned CIR(A) shall proceed against the taxpayer in accordance with law. Consequently, the order of the learned CIR(A) is vacated the matter remitted to him for afresh decision.

5. Appeal disposed off in the above manner. CMA/17/Tax(Trib.) Case remanded.