' ANWAR ZAHEER JAMALI, J.---This application under section 136(2) of the Income Tax Ordinance, 1979, (hereinafter referred to as the Ordinance of 1979), relating to the assessment case of the applicant for the year 1987-88, has been preferred, proposing therein following question for the opinion of this Court: "Whether on the facts and in the circumstances of the case the learned Income Tax Appellate Tribunal was justified in confirming that the action under section 65 has rightly been made".
2. Application under section 136(1) of the Ordinance of 1979, earlier moved by the applicant was dismissed by the Income Tax Appellate Tribunal, Karachi, vide its order dated 16-11-1993, by placing its reliance upon the pronouncement of Hon'ble Supreme Court of Pakistan in the reported case 1993 SCM R 493. In this judgment, taking into account the earlier view in the case of Edulji Dinsha Limited PLD 1990 SC 399 = 1990 PTD 155, Apex Court has held as under:--- "It is held in the reported judgment of that case, once all the facts have been fully discussed by the assessee and considered by the Income Tax Authorities and assessments have been consciously completed and no new fact has been discovered there can be no scope for interference with these concluded transactions under the provisions of section 65 on the ground that the income chargeable to tax under the. Ordinance has escaped assessment or has been under assessed in the meaning of section 65(1)(b) of the Income Tax Ordinance. Maximum emphasis in this ruling is on use of word to the effect "assessm ents have been consciously completed". Requirement spot- lighted is that I.T.O. Has applied his mind consciously to the facts of the case and perusal of the record. If there is conscious application of mind, then rule laid down in this case will apply with full force. If there is no conscious application of mind by I.T.O. Then rule laid down in this case will not be attracted."
3. Mr. Rehan Hassan Naqvi, learned counsel for applicant, with the assistance of Ms. Lubna Pervaiz Advocate has read before us the assessment order under section 62 of the Ordinance of 1979 dated 29-9-1988, assessm ent order under section 65 of the Ordinance of 1979, order of Commissioner of income Tax (Appeals) Zone-VI, Karachi dated 18-11-1991 and the order of Income Tax Appellate Tribunal, Karachi dated 18-1-1993. He, contended that all the forums in the hierarchy of Income Tax Ordinance, 1979, have misinterpreted and misapplied the provisions of section 65 of the Ordinance of 1979, as the assessment made by the Assessing Officer in terms of section 65 of the Ordinance of 1979, was not based on any definite information collected by him from any out side source rather it was a case of change of opinion by the successor Assessing Officer , on the basis of record already available with him, which was not permitted under the said provision of law.
To fortify his contention, learned counsel has placed reliance upon the following cases:
(i) Inspecting Assistant Commissioner and another v. Pakistan Herald Ltd. 1997 SCM R 1256.
(ii) Car Tunes v. Income Tax Officer and others PLD 1989 Kar. 337 = 1989 PTD 478.
(iii) Republic Motors Ltd. v. Inc'me Tax Officer and others 1990 PTD 889.
4. Dilating upon the factual aspects of the case, learned counsel further contended that revised wealth statement taken into consideration by the Assessing Officer for exercising powers under section 65 of the Ordinance of 1979, was filed by the applicant on 30th January, 1988, i,e, before framing of assessm ent order under section 62 of the Ordinance of 1979, therefore, re-consideration and re-opening of case of the applicant on the basis of such revised wealth statement cannot be considered as definite information within the meaning of section 65 of the Ordinance of 1979.
5. Mr. Nasrullah Awan, learned counsel for respondent, on the other hand, has placed reliance upon the cases Messrs H.M. Abdullah v. The Income Tax Officer 1991 PTD 217; Messrs Pakistan Tobacco Co.
Ltd. v. Government of Pakistan 1991 PTD 345 and Pakistan Tobacco Co. Ltd. v. Government of Pakistan 1993 SCM R 493 (also referred by the Tribunal in its order dated 16-11-1993). He contended that where the order of assessm ent was framed by the Assessing Officer, without conscious application of mind in a mechanical and routine manner by accepting the accounts filed by the assessee, then any information subsequently gathered from the record, which has earlier skipped the sight of the Assessing Officer, will amount to definite information within the meaning of section 65 of the Ordinance of 1979, and thus, powers could be exercised under the said provision of law for additional assessm ent.
6. We have carefully considered the arguments advanced by the learned counsel and also gone through the cases cited at the bar.
7. Before proceeding further, it would be advantageous to reproduce here, section 65 of the Ordinance of 1979, which reads as under: "65. Additional assessm ent.---(1) If, in any year for any reason,---
(a) any income chargeable to tax under this Ordinance has escaped assessment; or
(b) the total income of an assessee has been under assessed, or assessed at too low a rate, or has been the subject of excessive relief or refund under this Ordinance; or
(c) the total income of an assessee and the tax payable by him has been assessed or determined under subsection (1) of the section 59 or section 59A or deemed to have been so assessed or determined under subsection (1) of section 59 or section 59A.
' The Deputy Commissioner may, at any time, subject to the provisions of subsections (2), (3) and (4), issue a notice to the assessee containing all or any of the requirements of a notice under section 56 and may proceed to assess or determine, by an order in writing the total income of the assessee or the tax payable by him, as the case may be, and all the provisions of this Ordinance shall, so far as may be, apply accordingly: ' Provided that the tax shall be charged at the rate or rates applicable to the assessment year for which the assessm ent is made.
(2) No proceedings under subsection (1) shall be initiated unless definite information has come into the possession of the Deputy Commissioner (and) he has obtained the previous approval of the Inspecting Additional Commissioner of Income Tax in writing to do so."
8. A careful reading of above provision of law reveals that wide powers have been conferred upon the Deputy Commissioner/Assessing Officer to exercise jurisdiction under this provision of law in the cases which are covered by any of the categories (a), (b) and (c) of subsection (1), but subject to fulfilment of two conditions as underlined above. It will be seen that the first requirement of definite information is not bracketed with any condition of outside source, impliedly meaning thereby that such definite information could also be outcome of existing record.
9. In the instant case, there is no dispute from the applicant's side B as regards fulfilment of other condition of prior approval obtained by the Assessing Officer from the Inspecting Additional Commissioner of Income Tax, which is one of the requirements under subsection (2) of the above quoted section.
10. The words "definite information" used in subsection (2) have been discussed and debated from various angles in all the cases referred by the parties' counsel. In the case of Inspecting Assistant Commissioner and another, it was held that reopening of assessment on the basis of the earlier non-application of the provisions of law was not justified under section 65 of the Ordinance of 1979, as it would not constitute definite information. In the case of Car Tunes, it was held that notice under section 65 of the Ordinance of 1979, issued by the successor Income Tax Officer on the same material, but on the basis of change of opinion that valuation accepted by the predecessor was not fair, was unwarranted by law. In the case of Republic Motors Ltd. It was held that provisions of section 65 of the Ordinance of 1979, could not be invoked unless definite information has come into the possession of the Income Tax Officer. Mere fact that the Assessing Officer has realized his mistake in applying the wrong provision of law while framing original assessment, would not constitute definite information within the meaning of section 65 of the Ordinance of 1979. Therefore, exercise of jurisdiction in such circumstances, will amount merely to change of opinion, thus not tenable in law.
11. In the case of Messrs H.M. Abdullah, a Division Bench of this Court held that where the assessm ent order was made without investigation and with no conscious application of mind, issuance of notice under section 65 of the Ordinance of 1979 and reassessment on that basis, will not amount to change of opinion. In the case of Messrs Pakistan Tobacco Co. Ltd. 1991 PTD 345, it was held that where the assessm ent was framed in mechanical and routine manner without conscious application of mind and subsequently if some information is received, then on that basis, the Assessing Officer would be entitled to initiate action under section 65 of the Ordinance of 1979. In the case of Messrs Pakistan Tobacco Co. Ltd. 1993 SCM R 493, the view taken by this Court in the preceding case was confirmed by the Hon'ble Supreme Court with the observations, as reproduced in the earlier part of this order.
12. Reverting to the facts of the instant case, it will be seen that at the time of framing of assessm ent order dated 29-2-1988. Revised Wealth Statement purportedly dated 30th January, 1988 filed by the assessee/applicant, totally skipped the sight of the Assessing Officer, thus, there was no conscious application of mind by the Assessing Officer to this aspect of the case at the time of framing of such assessm ent for the assessment year 1987-88. The successor Assessing ;Officer, when came across this definite information from the record, has rightly invoked powers under section 65 of the Ordinance of 1979, by issuing notice to the applicant for seeking his clarification about the additional sum of Rs,3,00,000 shown in the Revised Wealth Statement by the applicant. Having not been satisfied with the explanation given by the applicant, the assessment of the applicant was revised with the addition of the said sum of Rs,3,00,000 towards his income. In our view, while doing so, the learned Assessing Officer has rightly invoked the provisions of section 65 of the Ordinance of 1979, as the Revised Wealth Statement had furnished definite information for the Assessing Officer within the meaning of section 65 of the Ordinance of 1979 and it was palpably clear from the case record that the earlier assessment order dated 29-2-1988 was passed in a routine manner without conscious application of mind by the Assessing Officer in this regard. This view of the matter is fully supported with the observations of the Apex Court in the case of (1993) 63 Tax 222. Thus, the contention of Mr. Rehan Hassan Naqvi that only definite information collected from outside source could be considered as definite information in terms of subsection (2) of section 65 of the Ordinance of 1979, is not tenable.
13. Besides, we are also in agreement with the view expressed by the learned Income Tax Appellate Tribunal in its order dated 16-11-1993 that in view of the above discussed principles laid down by the Hon'ble Supreme Court as regards the scope of "definite information" under section 65 of the Ordinance of 1979, the question proposed was no more a question of law, referable to this Court, within the ambit of section 136(2) of the Ordinance of 1979.
14. Foregoing are the reasons for our short order passed today, whereby this reference application was dismissed.