DECISION/FINDING JUSTICE (RETD.) MUNIR A. SHEIKH (FEDERAL TAX OMBUDSMAN).---In response to the notices issued by the Wealth Tax Officer, Circle 02, Multan, the complainant filed Wealth Tax Returns along with Form AGR-W of assessm ent years 1998-99 and 1999-2000.
He filed all the required documents in response to the statutory notices. On 10-2-2006 he received an undated assessm ent order passed by Mr. Muhammad Maqsood, ITO, Circle 06, Multan and unsigned demand notice, dated 3-2-2006. Original date on demand notice was mentioned as 26- 6-2004. The complainant and his elder brother (complainant in Complaint No,257 of 2006) jointly own properties in the same location and vicinity, but the Taxation Officer has applied different rates for valuation which establish his mala fides. He has adopted the value of non agricultural assets at Rs,.65,72,000 for the two assessme nt years against the declared value of Rs,7,92,000 and Rs,8,22,000 respectively. The value adjudged is not supported by any documentary evidence. The value of agricultural assets is not according to PIUs and the rate mentioned in the impugned order.
Moreover the notice under section 16(4) and show-cause notice, dated 14-6-2001 under the Wealth Tax Act, 1963 were not properly served on the complainant. He being an Income Tax Officer abused his power for passing the impugned order. The demand notice under section 30 supra was not prepared and signed at the time of passing undated ex parte assessment order. The order sheet which is index of assessm ent record and all the correspondence regarding assessment work is to be noted day to day basis on the order sheet. The Taxation Officer has failed to enter the correspondence of assessm ent with the complainant as well as with the higher authorities. The order sheet is incomplete, unsigned' and does not tally with the order sheet entries. The assessm ent order was lying in the assessment record for about two years, which shows negligence and mala fide intention of the Assessing Officer. Most of the notices mentioned in assessment order are lying in assessm ent record, which means that the same were not issued at all.
The complainant has requested that the impugned undated assessment order (allegedly passed on 26-6-2004) be declared as illegal, unlawful and without jurisdiction and be set aside and necessary action be taken against the relevant officer along with any other relief that may be deemed appropriate.
2. In the parawise comments submitted by RCIT, Central Region, Multan, a preliminary objection has been raised that the complainant has challenged the impugned order before the CIT (A)
Multan. The appeals have been heard and is awaiting decision. Therefore, the complaint falls within the ambit of section 9(2)(a) of FTO's Ordinance, 2000. On the factual side it is submitted that before finalization of assessm ent a show-cause notice was issued on 26-11-1999 through which the intended valuation of assets was confronted. The value was taken as mentioned in nomination paper filed by the complainant with the Election Commission of Pakistan for General Election of 1997. The value was adopted according to nature, size and location of the property. The assessm ent was rightly completed considering the PIUs of agricultural land. In the assessment order due to typographical mistake the designation of the assessing officer was typed as Income Tax Officer instead of Wealth Tax Officer. According to section 45A supra no assessment order shall be void for mistake/omission, which is not of substantial nature prejudicially affecting an, assessm ent. The assessm ent order was duly passed and signed which is available in the record.
The assessm ent was completed during June, 2004. The notices were duly served on the complainant and no illegality was committed. On the request of the complainant duplicate demand notice along with assessme nt order were served upon him on 3-2-2006 against which he has filed appeal before CIT(A) whose hearing has concluded and decision is awaited.
3. In the hearing of the case on 3-5-2006 the complainant was represented by Messrs Niaz Ahmad Khan and Mirza Muhammad Salim Beg, Advocates. The respondent was represented by Mr. Muhammad Abid (DCIT). The AR of the complainant filed a rejoinder to parawise comments of the respondent. Regarding preliminary objection it is submitted that the FTO has jurisdiction to investigate the complaint as it relates to the allegation of maladministration on the part of the Taxation Officer. Moreover it is based on legal issues of the case and is not a repetition of the grounds urged in the appeal. It is admitted that the appeal before the CIT was filed two days after lodging of the complaint which is pending. As the complaint relates to maladministration of the Taxation Officer, therefore, it can be investigated not withstanding pendency of the appeal. The AR of the complainant referred to the finding of the FTO in C.No,731-K/05 in which it was held that when ever maladministration is alleged independent of the controversy in the matter there will be no bar to the jurisdiction of the FTO to look into the allegation of the maladministration irrespective of the fact that a remedy under the statute has been provided. Wherever maladministration is alleged and proved, then the FTO can give recommendations and findings which may even affect the merits of case. The DR submitted that the complainant's appeal has been heard by the CIT(A) in which he had urged the same points as in the instant complaint and the decision is awaited.
Moreover the complaint is hit by section 9(2)(a) of the FTO's Ordinance, 2000.
4. The complainant has filed appeal before the CIT(A) against the impugned order. It is established law that where two or more remedies are available to a person he can avail only one of theffi. In the instant case the AR of the complainant was asked to exercise preference for availing the remedy before the FTO or before the CIT(A). His answer was that complaint related to maladministration whereas the appeal is on legal points. He was asked to produce a copy of the appeal, which he failed to produce. From perusal of the copy of appeal presented by the DR it transpires that the complainant has sought the same relief in the appeal. He has failed to exercise preference for availing the remedy from either forum. Since the appeal has been heard by the CIT(A) and only the decision is awaited so it would not be proper to give any finding which would interfere in the process of law.
5. In view of the position in the preceding para, the investigation of the complaint is closed and case consigned to record.