Amendment

Authorities contended that deeming assessment order issued under section 120(1) of Income Tax Ordinance, 2001, was within the jurisdiction of Commissioner under section 221(1) of Income Tax Ordinance, 2001

Validity

Inevitable corollary of the "state of affairs" brought about by the first deeming, i.e., the making of an assessment of taxable income and the tax due, was that the Commissioner was to be deemed to have applied his mind to the material before him, which was nothing other than the return

To conclude otherwise would be to impermissibly "cause or permit your imagination to boggle"

Such assessment (and that could be regarded as another inevitable corollary of the "state of affairs" required to be imagined) would be whatever was contained in the return, i.e., mistakes and all

Return having passed through sieve of first deeming then became, in terms of the second deeming, an assessment order deemed to have been issued by the Commissioner to the taxpayer

It followed that the two deeming provisions, when were taken together and properly applied, would result in an assessment order "passed" by the Commissioner within the meaning, and for purposes, of section 221(1) of Income Tax Ordinance, 2001

Supreme Court set aside the order passed by High Courts as determination made by High Courts on the question of jurisdiction was not correct

Supreme Court remanded the tax references to High Court which would be deemed pending in respective High Courts and questions of law raised therein would be decided in accordance with law

Appeal was disposed of.

Where an amendment is brought about in a fiscal statute it should not be given retrospective construction by applying it to past transactions, unless intention is expressed with irresistible clearness

Permissive basis for such legislative action is the fact that taxation is neither a penalty imposed on taxpayer nor a liability which he assumes by contract

It is but a way of apportioning the cost of government among those who in some measure are privileged to enjoy its benefits and must bear its burdens.

Act or statute cannot be amended through a notification or subordinate enactment.

Through amendment in written statement one cannot resile from the admission if made earlier in his written statement.

Amendment in fiscal statute has always prospective effect unless retrospective effect is given to it by the Legislature.

While an amendment is considered as the last expression of will of the legislature, generally prevails, however such effect is prospective and should not be given any retroactive construction, overriding effect on prior rights unless the verbiage of the provision makes such construction necessary.

No amendment under S.205 of Customs Act, 1969, is allowed in the columns of declared value, quantity or description after removal of the goods from customs area for home consumption.

No amendment under S.205 of Customs Act, 1969, is allowed in the columns of declared value, quantity or description after removal of the goods from customs area for home consumption.

Complainant was income tax assessee who was aggrieved of action taken under S. 122(1) of Income Tax Ordinance, 2001 by income tax authorities and same had been set aside by Commissioner Inland Revenue in exercise of powers under S.122-A of Income Tax Ordinance, 2001

Plea raised by authorities was that complaint was not maintainable

Validity

Order passed by tax authorities under S.122(1) of Income Tax Ordinance, 2001 was appealable under S.127 of Income Tax Ordinance, 2001 and provisions of S.122-A of Income Tax Ordinance, 2001 were attracted

Action taken by Commissioner Inland Revenue in setting aside assessment by taking action under S.122-A of Income Tax Ordinance, 2001 was contrary to law

Amendment in assessment was made on 29-09-2018 and demand notice was served on complainant on 02-10-2018 when he had sufficient time of filing appeal before Commissioner Inland Revenue (Appeals) till 11-02-2018 and during such period no activity under S. 122 of Income Tax Ordinance, 2001 could be made

Complaint had become infructuous but action of Commissioner Inland Revenue setting aside order passed under S. 122(1) of Income Tax Ordinance, 2001 by invoking provisions of S. 122-A of Income Tax Ordinance, 2001 was contrary to law, procedure, established departmental practice and involving exercise of powers for corrupt motives was established and same tantamount to maladministration as defined in S.2(3)(i)(a) & (d) of Federal Tax Ombudsman Ordinance, 2000

Federal Tax Ombudsman directed Federal Board of Revenue to direct concerned Zonal Commissioner Inland Revenue to rectify order passed under S.122-A of Income Tax Ordinance, 2001 while exercising powers conferred under S.221 of Income Tax Ordinance, 2001

Federal Tax Ombudsman further directed Federal Board of Revenue to initiate disciplinary proceedings in terms of S.14(6) of Federal Tax Ombudsman Ordinance, 2000 against Zonal Commissioner Inland Revenue for passing order under S. 122-A of Income Tax Ordinance, 2001 as same was contrary to law, procedure, established departmental practice and involving exercise of powers for corrupt motives to extend illegal benefit to complainant and causing substantial loss of revenue to the State

Complaint was dismissed accordingly.

No amendment under S.205 of Customs Act, 1969, is allowed in the columns of declared value, quantity or description after removal of the goods from customs area for home consumption.

Any amendment introduced in law has prospective effect, unless the amendment expressly provides for it to have retrospective effect.

Parliamentary practice is that a fiscal statute (Customs Act, 1969 so qualifies) is amended by a Money Bill.

Nothing was available on record to show that petitioner moved application before the Election Tribunal for such amendment

Said deficiency could not be allowed to fill the lacunae after the lapse of period of limitation

Election petition was rightly dismissed.

Court enjoyed jurisdiction under O.VI, R.17 of the C.P.C. to allow amendments in a plaint at any stage in the proceedings where, in the opinion of the court, the same was just and necessary for the final disposal of a case between the parties in accordance with law

Mere delay in making an application for amendment in pleadings was not a valid ground for refusing a proposed amendment in plaint, however, a court was also bound to exercise such discretion in accordance with settled judicial principles

Amendments were to be allowed if the same were necessary for accurate determination of a dispute between the parties and at any stage if the same did not change the complexion of the suit altogether or introduced a new cause of action and it did not cause prejudice to the other party

Amendments could also be allowed to seek consequential relief arising from a cause of action originally incorporated in the plaint or to add additional relief available to the plaintiff before the courts of higher jurisdiction, including the High Courts and the Supreme Court and could be allowed in order to base a plaint on a different title

Amendment to a plaint, however, cannot be allowed when mala fide on part of the plaintiff was explicitly visible in the pleadings or to raise a plea of fact which was derogatory to the plea already taken up in the plaint, particularly when such fact amounted to admission in favour of the other side

Amendment to a plaint could not be allowed on ground of findings made by another tribunal in respect of the same subject matter

Rights accrued in favour of one party could not be allowed to be snatched away by allowing amendment in a causal manner unless it qualified the test based on the established principles and the same cannot be done.

Such a provision had to be construed as if it was incorporated on the date when the main enactment reached the statute book.

Such a provision had to be construed as if it was incorporated on the date when the main enactment reached the statute book.

Consent decree was an agreement, like any other agreement and it was open to parties to enter into compromise with reference to their rights and obligations under a decree

Nothing existed in Civil Procedure Code, 1908, or Financial Institutions (Recovery of Finances) Ordinance, 2001, which could prevent parties to seek amendment of consent decree by circumventing mandatory provisions of Civil Procedure Code, 1908, and Financial Institutions (Recovery of Finances) Ordinance, 2001

Parties even with consent could not confer jurisdiction on court to amend decree in contravention of provisions of O. XX, R. 2, C.P.C. and S. 27 of Financial Institutions (Recovery of Finances) Ordinance, 2001

Once the Court had passed decree, it became functus officio except for amendment of decree as provided under law

No new person could be impleaded even as a defendant in suit after passing of decree

High Court declined to interfere in consent decree passed by Banking Court

Application was dismissed in circumstances.

Consent decree was an agreement, like any other agreement and it was open to parties to enter into compromise with reference to their rights and obligations under a decree

Nothing existed in Civil Procedure Code, 1908, or Financial Institutions (Recovery of Finances) Ordinance, 2001, which could prevent parties to seek amendment of consent decree by circumventing mandatory provisions of Civil Procedure Code, 1908, and Financial Institutions (Recovery of Finances) Ordinance, 2001

Parties even with consent could not confer jurisdiction on Court to amend decree in contravention of provisions of O. XX, R. 2, C.P.C. and S. 27 of Financial Institutions (Recovery of Finances) Ordinance, 2001

Once the Court had passed decree, it became functus officio except for amendment of decree as provided under law

No new person could be impleaded even as a defendant in suit after passing of decree

High Court declined to interfere in consent decree passed by Banking Court

Application was dismissed in circumstances.

Generally, the amendment is made to bring out change in the state of law unless the same is clarificatory or declaratory in nature.

During execution proceedings, judgment-debtor was claiming for amendment of decree whereas the decree holder was resisting the same

Validity

When compromise decree had been passed by a Court, the same could not be amended without consent of parties to proceedings

Status of compromise decree was that it only amounted to an agreement between parties superimposed by seal of court and superimposition of court's seal did not make the compromise decree untouchably sacred

Parties still had the option to amend the terms thereof mutually

Parties could not amend the same at their own option or deemed the same to have been amended by their agreement

After passing compromise decree, a party could not apply for modification/amendment of such decree unless the same was consented by the other party as well

High Court declined to interfere in the terms and conditions of consent decree passed by Banking Court

Application was dismissed in circumstances.

Department contended that First Appellate Authority was not justified to annul the amended assessment on the ground that S.122 of the Income Tax Ordinance, 2001 was not applicable if the original assessment order for assessment years 2002-2003 was passed on or before 30-6-2003; and also not justified to hold that order was legally inform and defective as show cause notice was issued indicating only S.122 of the Income Tax Ordinance 2001, without referring the specific provision of S.122(5)/122(5A) of the Income Tax Ordinance, 2001

Validity

Matter had been rightly decided by the First Appellate Authority after taking into consideration the facts as well as settled law

Appellate Tribunal dismissed the appeal of the department on the issue.

If the existence of a statute is completely terminated or none of its provisions remains in the field, the exercise thus, undertaken could not be termed as an amendment.

Amendment-Retrospectively Effect of amendment on pending actions.

Amendment-Often indicative of Intention of Legislature to acknowledge an existing defect and to remove it.

Ss. 2(2), 100, 151 & 152 and O. XLI, r. 11(1)-Decree-Amendment-Dismissal of appeal under O. XLI, r. 1I(1) involves adjudication on merits and attracts definition of "decree" under S. 2(2)-Such summary dismissal of appeal amounts to merger of decree of lower Court into that of appellate Court - Dismissal of second appeal by High Court under 0. XLI, r. II (l) also amounts to a "decree" although no formal decree is drawn up Person seeking amendment of decree passed by lower appellate Court after that decree had been a subject of second appeal by judgment-debtor and the second appeal had been summarily dismissed by High Court under O. XLI, r. 11(1), C. P. C.

Proper course: to approach High Court for relief and not to move application for amendment to lower appellate Court.

Execution, application - Amendment - No embargo on grant of-Restrictive provisions of O. XXI, r. 17 applicable only where application returned for non-compliance with provisions of rr. II to 14 of O. XXI and not where amendment is sought for other reasons-Civil Procedure Code (V of 1908), O. XXI, r. 10.

Changes can affect pending cases provided crew procedure does not, in its application, work to prejudice accrued rights under old procedure.

Ss. 256 & 257-Amendments Prospective and not retrospective in operation Cross-examination of witness Fundamental and substantive right of accused and not mere procedural matter Complaint instituted and prosecution witness examined before amendment of Ss. 256 & 257-Accused entitled to demand further cross-examination under S. 256 (1) or recall witness under S. 257 (1).

Pleading-Amendment-Plaintiff consenting to allow defendant to amend his pleadings on condition that plaintiff be entitled to reply-Plaintiff may add pleading to meet amended defence.