ORDER By the appeal for the assessment year 1999-2000 the Revenue/Department has called in question the combined order dated 1-11-2004 passed by the learned CIT/WT(A), Additional Appeals Zone, Lahore solely for the reason that the learned first appellate authority by relying on reported orders of this Tribunal:-
(a) (2004) 89 Tax 309(Trib.);
(b) (2003) 88 Tax 254 (Trib.).
Has held that the impugned assessm ent is' hit by limitation.
2. After hearing both the parties and on perusal of record we find that the learned first appellate authority by properly relying on the reported orders has decided the issue of limitation which is upheld. The departmental appeal being devoid of any merit is dismissed.
3. On the other hand, for the assessment year 2000-01, the order ibid has also been called in question by the assessee as appellant on the point of directions for valuation of immovable and secondly for holding that charge of additional tax is mandatory under the law and not discretionary.
4. At the time of hearing the learned AR has not pressed the setting with directions on the point of valuation of immovable so it is rejected, but has very clearly and categorically challenged the findings on the point of additional tax. The learned AR has pleaded the charging of additional tax' is not mandatory but is a discretionary requiring the assessing officer to decide its chargeability on the merit of each case, The learned AR by referring to the following reported judgments/orders has supported his contention:- PTCL 1995 CL 1 (High Court Lah.):
5. The learned AR has submitted that the liability to pay the additional tax keeping in view the language of sections for charging the additional tax has itself made it clear that it is not mandatory because there is a difference between the words "shall be liable" and "shall be payable", which has been dealt with by the Honorable Lahore High Court in reference to provisions of section 34 of Sales Tax Act prior to amendment section 34 in 1996. The words "liable to pay" as per ratio settled in reported judgment do not empower to give it mandatory shape. The other judgments quoted in favour of this ratio have also been referred by the learned AR which are as under:-
(1) 200I PTD 807 (HC Lah.);
(2) 2003 PTD 818 (HC Kar.);
(3) .(2004) 89 Tax 51 (HC Lah.);
(4) GST 2005 CL 54 (HC Kar);
6. in all these judgments supra clear rule has been enunciated that the provisions of additional tax in terms of language shall be liable to pay has made it is not mandatory and also that discretion has been given to judge each case on its merit.
7. The learned DR has supported the order by submitting that .The additional tax is invariably to be imposed wherever there is a situation described in the relevant sections but failed to quote even a single reported or unreported judgment to oppose the submission of the learned AR.
8. After hearing both the parties and on perusal of record and also going through the case law referred by the learned AR we do not feel any hesitation in holding that enactment has never been made as to give it a mechanical or mandatory shape for imposing the additional tax and also the language of sections as explained by the Honorable High Court has allowed the discretion to be exercised by the assessing officer on analyzing the merit of each case. So we are reluctant to uphold the findings of the learned first appellate authority that additional tax is mandatory under the law and not discretionary. The assesse's appeal for the assessment year 2000-01 on the issue of additional tax is accepted and the departmental appeal for the assessment year 1999-2000 is rejected.