2011 PLP (Trib (PTD)

This appeal has been filed by the assessee against an order of the learned CIT(Appeal) Zone-II, Islamabad dated 2-5-2005 relating to assessment year 1999-2000.

2. Brief facts are that return for assessment year 1999-2000 was filed declaring net loss of Rs.109,

570. Original assessment for the year 1999-2000 was framed which however was set aside by the Tribunal and reassessment was framed. The assessee still aggrieved went in appeal before the learned CIT(A) who again set aside the assessment and directed to reframe the same. Against this order, the assessee is in appeal before this Tribunal on the following grounds:- (1) That both the impugned order i.e. assessment order and appellate order are bad in law and contrary to the facts and circumstances of the case. (2) That the assessment order is barred by limitation of time. (3) That assessment made under section 63 is not a best judgment assessment. (4) That the learned CIT (Appeals) has illegally set aside the case with the direction of reframing the assessment instead of cancelling the assessment order being without jurisdiction. (5) That the matter of jurisdiction is pending before the High Court Rawalpindi Bench Rawalpindi. Hence the impugned assessment order is coram non judice being without jurisdiction.

4. At the out set learned A.R. stated that he does not press grounds Nos. 1 to 4 and may be treated as withdrawn. Regarding ground No.5 learned A.R. pointed out that against the decision of this Tribunal dated 22-1-2002, an application for reference was filed in the Tribunal which was not entertained whereon the assessee was forced to file tax reference in the High Court under section 136 of the Income Tax Ordinance, 1979 since repealed which is still pending. However pending disposal of the reference, the Taxation Officer passed re-assessment order on 23-6-2003 in the light of the direction of the Tribunal given in the order dated 22-1-2002. Learned A.R. contended that the Taxation Officer before passing of the aforesaid order was intimated that a reference has been filed in the High Court therefore he should withhold by passing any re- assessment order but of no avail. In this regard learned A.R mentioned section 66 of the repealed Ordinance, 1979 to contend that in the event of an appeal/reference being filed, the Taxation Officer could not pass the re-assessment order. Learned A.R also contended that he did mention this fact both before the Taxation Officer and learned CIT(A) but they did not consider the same. Learned A.R. remains that under section 66 of the repealed Ordinance, 1979 reassessment could not be framed when a reference has been filed in the High Court. He added that this provision stops the Taxation Officer from conducting further proceedings of framing of reassessment and the Taxation Officer was obliged to wait for the decision of the High Court. According to learned A.R, the re-assessment order was thus passed illegally. As against this learned D.R maintained that the taxpayer was required to produce evidence showing filing of reference before the High Court which was not done and in the given circumstance the re-assessment order was passed.

5. It seems that after remand of the case by the Tribunal vide order dated 22-1-2002 the Taxation Officer was intimated as to the filing of a reference by the assessee whereon he asked the assessee to file some document showing the filing of the reference but this was not done. Then, against passing of the re-assessment order the assessee went in appeal where the case was remanded and even before learned CIT(A) no proof was filed as to the filing of reference. During arguments before this Tribunal, learned A.R. has filed a photo copy of a reference application in the instant case before the High Court but that too is not an evidence, that in the instant case a reference was entertained by the High Court by showing in proof allocation of any number and date of the said reference by the office of the High Court. However, assuming for the sake of arguments that such a reference has been filed it is necessary to refer to section 136 (8) of the repealed Ordinance 1979 which is as follows:-- "Notwithstanding that a reference has been made under this section to the High Court, tax shall, unless the recovery thereof has been stayed by the High Court, be payable in accordance with the assessment made in the case."

6. Before proceeding further, it is mentionable that learned A.R. has not produced any order by High Court showing the stay of the proceedings. A bare reading of this provision shows that there is no bar in conducting reassessment proceedings after a decision by the Tribunal unless an order by the High Court for stay of recovery has been issued. Indisputably, recoveries are effected only following the existence of assessment orders. Therefore, it implies that legal proceedings cannot be withheld, merely because that order of Tribunal is under reference, where no stay has been issued. Further, it may be also mentioned here that if reassessment proceedings could not be conducted in the event of an appeal or reference being filed, the words showing of stay for recovery contained in subsection (8) would not have been incorporated/ used.

7. In these circumstances, the passing of re-assessment order dated 23-6-2003 does not appear to be illegal which however has been set aside by the CIT(A) in appeal vide order dated 2-2-2005. Thus there is no force in the appeal which is rejected. C.M.A./85/Tax(Trib.) Appeal rejected.