2003 PLP 1780 (PTD)

Ss. 59 & 61

Constitution of Pakistan (1973), Art. 199-- Constitutional petition

Self-assessment

Selection of case for detailed scrutiny

Validity

Revenue could not show exact reason for denying concession of Self-Assessment Scheme to petitioner

After issuance of Self-Assessment Scheme for year 1998-99, Central Board of Revenue had issued Circular No. 16 of 1998 specifying certain categories of assessees whose cases were to be selected for special audit

Issuance of such Circular almost 5/6 months after. issuance of Self-Assessment Scheme was totally unjustified as same was an attempt to trap unwary assessees

All categories of assessees given in such Circular ought to have, been informed- well before filing of return under Self-Assessment Scheme that they would not be allowed to avail concession

Issuance of such Circular nullified part of the Scheme

Case of petitioner had been taken up against Scheme, which was illegal exercise of discretion vested in Revenue

High Court accepted Constitutional petition and declared impugned order to be illegal. Asghar Ahmad Kharal for Petitioner. Muhammad Ilyas Khan for Respondent. Date of hearing: 17th December, 2002. Through this Constitutional Petition,. the petitioner, an individual, a Doctor by profession has assailed the issuance of a notice under section 61 of the late-Income Tax Ordinance, 1979. He claims that since he duly qualified to Avail the concession of Self-Assessment Scheme in terms of the spirit of the Circular No.9 of 1998, the issuance of the aforesaid notice after plucking his return earlier filed under Self Assessment Scheme was without jurisdiction.

2. On 27-2-2001 this Court adjourned the case for 12-3-2001 and directed that "in the meanwhile no final order shall be passed". The case does not appear to have been listed on 12-3-2001 as thereafter it came up for hearing on 19-4-2001 and was adjourned for a date in office. On 11-12-2002 learned counsel for the petitioner informed me that despite the aforesaid. injunctive order the respondent. Dr. Yasmeen Fatima, the Assessing Officer framed an assessment on 30-6-2001. On this the officer was served with a notice. She is present alongwith learned legal adviser Mr. Muhammad Ilyas Khan, Advocate.

3. After hearing the learned counsel .for the parties I am of the view that interpretation of the Assessing Officer that the injunctive order of this Court remained in currency only till 12-1-2001 is not acceptable. It was the case of an individual drawing income from salary and there was no urgency which could have possibly pushed the Assessing Officer to embark upon loud interpretation of the said injunction order. The framing of final assessment order in respect of the petitioner on 30-6-2001 before the expiry of the Constitutional period contemplated under Article 199 was, therefore, an exercise in futility. That assessment order framed under section 62 shall, therefore, be set at naught.

4. As for the merits of the main petition are concerned on hearing the learned counsel for the parties again I find that denial of the concession of Self-Assessment Scheme to the assessee was not based upon any acceptable interpretation of the Self-Assessment Scheme issued for the year in question. Even in the reply submitted by the Revenue the exact reason to deny the concession of Self-Assessment Scheme has not been crystallized. It has been noticed that after issuance of Self Assessment Scheme for the year 1998-99 the C.B.R. issue another Circular on 30-12-1998 specifying certain categories of assessees whose cases were to be selected for special audit for the assessment year 1998-99. The issuance of that Circular No. 16 of 1998 almost 5/6 months after the issuance of Self-Assessment Scheme was totally unjustified: It was an attempt to trap the unwary assessees. All categories of assessees given in the circular ought to have been informed well before filing of return under Self-Assessment Scheme that they will not be allowed to avail the concession. The issuance of circular nullifies part of the Scheme. The case of assessee was taken up against the Scheme and was, therefore, illegal exercise of a discretion vested in the Revenue.

5. Accordingly, the submissions made in the petition also those addressed at the bar bear weight. Thus, the selection of the case of the assessee for detailed scrutiny and issuance. of notice under section 61 of the late Income Tax Ordinance is declared to be illegal.

6. Petition accepted. S.A.K./M-1803/L Petition accepted.