' This titled appeal has been filed by the appellant/taxpayer against order No.138 dated 17-3-2014, passed by the learned Commissioner inland Revenue (Appeals), Gujranwala, pertaining to tax year 2007..
' Brief facts emanating to the instant appeal are that taxpayer filed his return of income for the tax year 2007 by declaring a net income of Rs.140,000 which with the operation of law attained the status of assessm ent order under section 120(1) of the Income Tax Ordinance, 2001 (the 'Ordinance'). Subsequently, it was revealed to the department that taxpayer had deposited a sum of Rs.14,850,637 in the bank account No.0010001647 and No.240017 Allied Bank Limited but the taxpayer did not declare sales and capital employed in the income tax/sales tax return. As a consequence an amount of Rs.14,850,637 appeared as unexplained in terms of section 111(1)(b) of Ordinance. Moreover, the Assessing Officer estimated the sales on the basis of electricity units consumed at Rs.513,450,300. He assessed the income at Rs.25,159,050 by applying the GP rate of 8%. After considering reply of the taxpayer he assessed income in view of the estimated of sales, however, he did not make addition of bank deposit.
' Being aggrieved with the treatment of assessing officer taxpayer went in appeal before CIR(A), who maintained the order of assessing officer. Still dissatisfied taxpayer has come up in appeal before this Tribunal.
' The learned counsel for the appellant contested that the issuance of show-cause notice as well as the amended assessm ent being time barred. He argued that taxpayer filed its income tax return on 6-5-2008, for the tax period ending on 30-6-2008. Therefore, amended order could only be passed within five years i.e. Upto 5-5-2013. He argued that show-cause notice was issued on 5-6- 2013 which is time barred and the amended assessment completed on 29-6-2013 on the basis of aforesaid show-cause notice is also time barred. In support of his contentions he placed reliance on the following reported judgments:- ' Supreme Court of Pakistan reported as 2009 PTD 37 ' 1988 SCM R 715 ' Lahore High Court Lahore reported as 2011 PTD 1558 ' He also submitted copy. Of latest judgment of Lahore High Court Lahore, bearing I.T.R. No. 01/2013 in the case of the CM v. Maj. Gen. (R) Dr. C.M. Anwar etc. Relevant portion from the judgment is reproduced hereunder:-- ' After examining the proposed questions, in light of the facts found and decision made by the Tribunal, we are of the opinion that only questions Nos.1 and 2 arise out the order of the Tribunal, the same are therefore being answered. Since the law point raised in the question No.3 was neither raised nor decided by the Tribunal therefore we decline to answer the same. Reliance in, this regard is place on the judgment by Apex Court in Messrs Nida-i-Millat (Pvt.) Ltd., Lahore v. Commissioner of Income-Tax, Zone No.1, Lahore ((sic) SCMR 526)
' Before embarking upon the discussion in answer the admitted questions, scrutiny of the repealed and repealing provisions of section 122(2) of the Ordinance is imperative, the same are reproduced therefore, "(2) An assessm ent order shall only be amended under subsection (1) within five years, After the Commissioner has issued or is treated as having issued the assessment order on the taxpayer.", ' This subsection was substituted by the following subsection (2) by Finance Act, ,2009:-- "(2) No order under subsection (1) shall be amended by the Commissioner after the expiry of five years from the end of the financial year in which the Commissioner has issued treated to have issued the assessm ent order to the taxpayer."
8. The substituted section 122(2) of the Ordinance requires the limitation to run after the expiry of five years from the end of the financial year which in this case could be 1-7-2007, i.e., from the end of the financial year ending on 30-6-2004. As a consequence the deemed assessment under section 120 dated 29-9-2004 shall expire on 30-6-2010 instead of 28-9-2009 under the law before substitution.
9. Show-cause notice has been issued on 13-5-2010 when limitation under the substituted law had expired on 28-9-2009, therefore, assessment under section 120 had attained finality under the repealed subsection (2). Reference is made under section 6(1)(c) of the General Clauses Act, 1897, which reads:- "Where this act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not: (a)-------------------- (b)-------------------- "Affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed".
' Limitation as it stood at the time of filing of the return will apply to the case of the petitioner.
Reliance is placed on Messrs Fawad Textile Mills Ltd. Through Director, Lahore v. Pakistan through Secretary, Ministry of Finance and 3 others (2005 PTD 14) and Commr. Of Income Tax v.
Dharamchand Dalchand [1 ITC 264 Nagpur]
10. It is therefore, trite law that even procedural law cannot take away vested and existing rights by applying it retrospectively, unless such intention of the legislature is expressed in unequivocal terms.
11. In the light of the discussion made and law referred, answer to question No.1 is in the affirmative and the answer to question No.2 is in the negative. On the whole reference filed by the department is dismissed.
' In view of the above discussion, the learned counsel for the appellant prayed for cancellation of orders of both the below authorities.
' On the other hand, learned DR supported the impugned orders.
' We have heard both the parties and perused relevant record. Keeping in view the available record and facts of the case, we are of the considered opinion that since, at the time of filing of income tax return on 6-5-2008 for the tax year 2007, which was taken to be an assessment order in terms of section 120(1) of the Ordinance, the limitation for amending such assessment order was provided by the legislature as B five years, therefore, amended assessment order under sections 122(1)/ 122(5)(ii) of the Ordinance passed on 29-6-2013 is absolutely time barred being passed after the time limitation of five years, which in the instant case expired on 5-5-2013. Therefore, we are left with no other option except to vacate the orders passed by both authorities below by way of acceptance of appeal preferred by the taxpayer.
Disposed off.