2015 PLP (Trib (PTD)

The moot point requiring adjudication is whether under the circumstances of the case, the taxation officer was required to issue a fresh notice under section 122(9) of the Income Tax Ordinance, 2001 (the Ordinance) after filing of revised return which was deemed to have been assessed by operation of law or not. Revenue's point of view appears to be that the assessing officer had duly taken care of the contentions, submissions and arguments presented before him, letters dated 28-10-2010 and 28-12-2010. Summary of the pleadings for the taxpayer is that the earlier notice issued under section 122(9) of the Ordinance on 30-1-2010 had become infructuous, the moment a revised return was filed. He submits that the deficiencies i.e. non-issuance of fresh notice under section 122(9) after filing of revised return was fatal rendering the impugned order nullity. We have examined the rival arguments. The issue as to what would be a procedural irregularity was lately examined by a Division Bench of Karachi High Court in the case cited as 2006 PTD 1088. The issue before their lordships had arisen in the context of section 35 of the repealed Wealth Tax Act, 1963 (the repealed Act). The Tribunal had recalled its earlier order in exercise of powers under section 35 of the repealed Act on an application moved by the Revenue. It was pleaded before the Honourable Karachi High Court that the Tribunal could have exercised its said powers on its own or on an application by the taxpayer. The issue was resolved by their lordships in favour of the Tribunal, since, during the course of proceedings before the Tribunal, the taxpayer had given its consent. While disposing of the matter, their lordships observed, inter alia, that distinction has to be made between substantive provisions of law conferring upon the taxpayer rights and those (sic) ?? providing for procedure. It was held that procedural irregularities were not to be considered as fatal to the proceedings so as to vitiate the proceedings but were curable lacunas or shortcomings of the proceedings. Their lordships further observed that violation of a substantive provision of law should not be simply ignored as procedural irregularity. Now it is to be seen as to whether requirement of issuance of notice in case of a revised return, resulting an amended assessment, is a provision of substantive law or it simply provides for procedure. Subsection (9) of section 122 requires as under:- (9) No assessment shall be amended, or further amended, under this section unless the taxpayer has been provided with an opportunity of being heard. A plain reading of the language immediately suggests that it is a mandatory provision. It is settled principle, illustrated in a number of judgments of the superior judiciary that when the law requires some thing to be done in a particular manner then that very thing should be done in that very particular manner. This being so, non-issuance of a notice under section 122(9) cannot be simply ignored as procedural irregularity. Issuance of notice in fact embodies the time honoured maxim of audi alterm parterm. The provision as contained in said subsection (9) ensures a fundamental right of all the citizen of this country including all the taxpayers that no one shall be condemned unheard. Having filed the revised return the taxpayer had a vested right of being heard through issuance of a notice pointing out the deficiencies, etc., observed by the assessing officer in the revised return. This having not been done, the assessing officer lacked jurisdiction to proceed with the amendment proceedings. Upshot of the above discussion is that the Revenue has failed to establish any legal or factual infirmity in the impugned order. Hence its confirmation. HBT/155/Tax(Trib.) Order confirmed.