Mr. Fahim Adil S/o Akhtar Hayat, Deara Cheenanwala, Mitha Station, District Khushab. | Appellant | |
Vs | ||
Commissioner Inland Revenue, RTO, Sargodha. | Respondent | |
Appellant By | Mr. Tariq Maqbool, ITP | |
Respondent By | None | |
Date of Hearing | 06.08.2019 | |
Date of Order | 06.08.2019 |
M. M. AKRAM (Judicial Member): The titled appeal has been filed by the appellant/taxpayer against Order No.0948 dated 14.03.2018 passed by the learned Commissioner Inland Revenue (Appeals), Sargodha for the Tax Year, 2014 on the grounds as set forth in the memo of appeal.
2. Brief
facts culled out from the record are that the appellant was not an existing
taxpayer. Proceedings were initiated on receipt of definite information that
the person under consideration had made cash withdrawals from the bank
amounting to Rs.46,400,000/- and tax amounting to Rs.139,200/- had been
deducted on such cash withdrawals. Examination of the record revealed that no
return of income for the tax year under consideration had been filed, therefore
notice u/s 114 (4) was issued by the CIR (BTB) Headquarter, FBR Islamabad, and
served upon the person through the post, however, no compliance of notice u/s
114 (4) was made. As per the provisions of section 122C (1) of the Income Tax
Ordinance, 2001 (the Ordinance), where in response to a notice under
sub-section (3) or sub-section (4) of section 114 a person fails to furnish
return of income for any tax year then on the basis of any available
information or material and to the best of judgment, a provisional assessment
of the taxable income of the person may be made and provisional assessment
order specifying the taxable income or income assessed and the tax due thereon
may be issued. In view of the foregoing facts of the case as well as
information/data available a show-cause notice under section 122C read with
section 111 (1)(b) and a show-cause notice u/s 111 (1)(b) as well as notice u/s
116 of the Ordinance were issued and served upon the taxpayer. Despite proper
service of the notices and lapse of time allowed/dates adjourned, the said
person failed to file a return of income and wealth statement for the tax year
under consideration. No explanation was submitted regarding sources of money
withdrawn as cash from a bank account. Proceedings culminated in finalization
of order u/s 122C of the Ordinance detail whereof are as under: -
|
Income declared |
Nil |
|
Additions u/s 111 (1)(b) of the ITO, 2001 on the
basis of unexplained investment/money owned by the person (equal to the
amount of cash withdrawn from the banks) treated as income from “other
sources”. |
46,400,000/- |
|
Total income assessed |
46,400,000/- |
|
Tax payable on assessed income |
15,462,500/- |
|
Tax already deducted by banks |
139,200/- |
|
Balance tax payable |
15,323,300/- |
The appellant felt aggrieved against the aforesaid order, preferred the appeal before the learned Commissioner Inland Revenue (Appeals), Sargodha who vide order dated 14.03.2018 dismissed the appeal of the appellant on the sole ground that the order passed under section 122C of the Ordinance is not entertainable under section 127 of the Ordinance which clearly debars for filing of appeal against such order. Being aggrieved of the impugned appellate order, the appellant has now come up before this forum and has assailed the impugned order on a number of grounds.
3. The
learned AR of the appellant contended that the learned CIR (A) has erred in law
in dismissing the appeal in limini on the ground that the appeal of the
appellant is not maintainable as per section 127 of the Ordinance. Reliance is
placed on the followings judgments:-
i. 2012
PTD 1050
ii. 2012
PTD 839
iii. 2012 PTD 880
iv. 2013
PTD 2233
v. Tax Reference No.5-P/2013 (Peshawar High Court).
4. On the other hand, no one appeared on behalf of the department.
3. We have heard and
perused the relevant record. The record shows that the appeal of the appellant
was rejected by the learned CIR (A) on a ground that the appeal does not lie
against the order passed under section 122C as at the relevant time a specific
bar was imposed in sub-section (1) of section 127 of the Ordinance and right of
appeal to the taxpayer was expressly excluded from the ambit of sub-section (1)
of section 127 of the Ordinance. The judgments relied upon by the learned
counsel mentioned supra are perused and found not relevant as all these
judgments relate to the assessment orders passed prior to the amendment made
through Finance Act, 2012. Through Finance Act, 2012 the words “a provisional” were substituted with
the word “an” in sub-section (1) of
section 127 ibid which clearly debars for filing of appeal against the order
passed under section 122C ibid. For ease of reference, section 127(1) after
amendment at the relevant time is reproduced hereunder:-
“127. Appeal to the Commissioner (Appeals):- (1) Any person dissatisfied with any order passed by a Commissioner or an Officer of Inland Revenue under section 121, 122, 143, 144, 162, 170, 182 or 205, or an order under sub-section (1) of section 161 holding a person to be personally liable to pay an amount of tax, or an order under clause (f) of sub-section (3) of section 172 declaring a person to be the representative of a non-resident person or an order giving effect to any finding or directions in any order made under this Part by the Commissioner (Appeals), Appellate Tribunal, High Court or Supreme Court, or an order under section 221 refusing to rectify the mistake, either in full or in part, as claimed by the taxpayer or order having the effect of enhancing the assessment or reducing a refund or otherwise increasing the liability of the person, except an assessment order under section 122C, may prefer an appeal to the Commissioner (Appeals) against the order.” (Emphasis supplied)
The above provision of law clearly shows
that after the amendment through Finance Act, 2012, the legislature has
expressly excluded the right of appeal to the taxpayer against the order passed
under section 122C ibid. The legislature in its own wisdom has not provided the
remedy to the person against the order passed by the Assessing Officer under
section 122C of the Ordinance. It is an immutable principle of law that appeal
cannot be claimed as a right unless provided by the statute. Language of
sub-section (1) of section 127 of the Ordinance clearly and expressly excludes
the right of appeal to the taxpayer. The Hon'ble Supreme Court of Pakistan in
its judgment titled as Mughal Surgical (Pvt.) Ltd. and others v.
Presiding Officer, Punjab Labour Court No.7 and other (2006 SCMR 590)
has held that appeal is not a natural or an inherent right of litigants, but is
a statutory right granted by different laws by different enactments. In Muzaffar
Ali v. Muhammad Shafi (PLD 1981 SC 94) it is held that the right of
appeal can only be availed if it is granted by law. In a judgment cited as Malik
Umar Aslam v. Mrs. Sumaira Aslam and others (2014 SCMR 45), the
Apex Court has re-emphasis the principle that “appeal is a statutory right that can only be exercised if the statute
has provided so as a matter of right”.
4. In the instant case,
admittedly the original order was passed on 25.04.2016 by the Assessing Officer
under section 122C of the Ordinance after amendment in section 127(1) which was
assailed by the appellant before the learned CIR (A) under section 127(1) of
the Ordinance. However, no statutory right of appeal was available to the
appellant under the said provisions of law at the relevant time and as such the
learned CIR (A) has rightly dismissed the appeal as being not maintainable. Therefore,
keeping in view of the peculiar circumstance of this case and ratio decided by
the Apex Court in the judgments supra, the titled appeal of the appellant is
rejected.
5. This order consists of
(04) pages and each page bears my signature. Heir
|
|
Sd/- (M.M. AKRAM) JUDICIAL
MEMBER |
|
Sd/- (NADIR
MUMTAZ WARRAICH) ACCOUNTANT
MEMBER |
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