1. IRFAN SAADAT KHAN, J. The question of law raised in the instant Income Tax Reference (ITR) has been referred to this Court by the Income Tax Appellate Tribunal (Pakistan) Karachi (ITAT) vide its order dated 18.4.2002 by raising the following question of law:- "Whether in the circumstances and facts of the case, both the Appellate Authorities were justified by holding that order passed under sections 65/62 of the Income Tax Ordinance, 1979, is not legally maintainable having no definite information?
2. Briefly stated, the facts of the case are that the applicant/ assesse is an individual and Director of M/s. Paradise Services (Pvt.) Limited and one of the co-owners of property under the name and style of Paradise Hotel and Shopping Centre. The return 'of total income was filed for the assessm ent year 1991-92 by declaring an income of Rs.99,900/-. Thereafter, the assessment was completed by making certain additions to the income of the assesse. Thereafter an appeal was filed before the Commissioner of Income Tax Appeal (CITA) who set aside certain additions. The department then reopened the case of the assesse under Section 65 of the Repealed Ordinance on the ground that certain investments made by the assesse were not declared in the return. The concerned Assessing Officer (AO) then completed the assessment under Sections 62/65 of the Repealed Ordinance vide order dated 10.6.1998 by making an addition of Rs.13,33,333/- under Section 13(1)(aa) of the Repealed Ordinance. An appeal thereafter was filed before the CITA, who vide order dated 25.01.2001 cancelled the assessment made by the AO under Sections 62/65 of the Repealed Ordinance. Being aggrieved with the order passed by the CITA the department preferred an appeal before the ITAT bearing ITA No.1217/KB of 2000-01 and the TTAT vide order dated 12.11.2002 was pleased to uphold the order of CITA. Thereafter the department approached the ITAT by filing a Reference Application bearing No.141/KB of 2002 requiring the ITAT to refer the above referred question of law to this Court for its opinion under the Provisions of Section 136(1) of the Repealed Ordinance.
3. Mr. Muhammad Aqeel Qureshi Advocate has appeared on behalf of the department/applicant and stated that since the assesse who is an individual, failed to declare the investment made by him in Paradise Hotel in which he was co-owner the AO was justified in adding an amount of Rs.13,33,333/- as share of undeclared investment under the Provisions of Section 13(1)(aa) of the Repealed Ordinance. The learned counsel further stated that the department had definite information of non-disclosure of the investment made by the taxpayer and, thus, the action of reopening the assessm ent was fully justified and, therefore, in his view the answer to the question may be given in negative i.e. in favour of the department and against the taxpayer.
4. Nobody is in attendance on behalf of the respondent.
5. We have beard the learned counsel for the applicant/department and have perused the record.
6. We specifically asked a question from the learned counsel appearing for the department that- whether the department had received any information from some outside source or information was very much 'available with the department in the shape of wealth statement and its reconciliation, etc. The learned counsel frankly conceded that no definite information has come from any external source but the information was very much available in the, record/details as furnished by the assesse during the assessment proceedings. He was next asked that whether when no new information was received and the information was already available with the department why the matter was reopened and whether this could be termed as a definite information and not a change of opinion on the part of department, to which no plausible explanation was furnished by him.
7. It is noted that the very basis of reopening the matter being that according to the department that the investment made in Hotel Paradise of which the assesse was a co-owner was not shown by the assesse whereas the information with regard to the investment was very much available with the department as no extraneous material was shown to have received or obtained but all the information with regard to the investment was gathered from the record already in possession of the department. It is a settled proposition of law that for reopening any assessment under the Provisions of Section 65 of the Repealed Ordinance there has to be "definite information" available with the department but was any definite information available with the department in the instant matter has not been explained as no fresh or new material has come in the possession of the AO to justify the reopening of the previous assessment. It is also a settled principle of law that previously completed assessm ent could not be reopened when no definite information is available with the department rather the same falls under the category "change of opinion", upon which matter cannot be reopened by the department. It is a settled proposition of law that definte information did not mean a reanalysis of existing information or further information or an opinion which was accessible but not taken into consideration by the tax authorities. Reference may be made to the decision given in the case of Chief Commissioner Inland Revenue, RTO, Peshawar v. Sabrina Tent Services (2019 SCMR 1639).
8. So far as change of opinion is concerned that also did not constitute definite information to justify reopening of any completed assessme nt. Reference in this regard could be made to the decision given in the case of Dewan Khalid Textile Mills Ltd. v. Commissioner of Income Tax (Legal Division) LTU, Karachi (2019 SCMR 158).
9. We, therefore, in the light of what has been stated above have come to the conclusion that since in the instant case there was no fresh or new material which has come to the possession of the AO to constitute a definite information to reopen a completed assessment on the basis of the record already in the possession of the department or in their access, thus, the action taken by the department under Sections 62/65 of the Repealed Ordinance is not legally maintainable as rightly held by the Authorities below.
10. We, therefore, answer the question raised in the instant ITR in affirmative i.e. against the applicant/department and in favour of the respondent/assesse.
11. Let a copy of this order be sent to the Registrar, Income Tax Appellate Tribunal, for doing the needful in accordance with law.