Mirza Viqas Rauf, J. This Reference Application in terms of Section 133 of the Income Tax Ordinance, 2001 (hereinafter referred to as "Ordinance") originates from the order dated 22nd of October, 2024, whereby Commissioner Inland Revenue (Appeals-I), Islamabad (hereinafter referred to as "Commissioner") proceeded to allow the appeal preferred by the respondent No.1 (hereinafter referred to as "respondent") and annul the order dated 24th of June, 2023, passed by the Assistant/Deputy Commissioner, Inland Revenue, Unit VI, Range-II, Cantt Zone, RTO Rawalpindi.
2. Facts, in brief, necessary for setting at rest the question canvassed in this reference application are that proceeding were initiated by the applicant-department on the basis of definite information in possession of the Assessing Officer that the respondent had purchased immovable properties amounting to Rs.33,000,000/- and declared taxable income as Rs.1,253,475/-, which needs verification. Accordingly, a show cause notice under Section 122(9) read with Section 111(1)(b) of the Ordinance was issued confronting the respondent on the said intended treatment. On account of no response on the part of the respondent, as per stance of the applicant-department, the Assessing Officer proceeded to finalize the proceedings by creating tax demand of Rs.11,072,767/-. Being dissatisfied, the respondent preferred an appeal before the Commissioner, which was allowed through the impugned order.
3. This reference application was admitted for regular hearing by way of order dated 23rd of April, 2025 and notice was issued to respondent, inter alia, on the following questions of law:- i) Whether under the facts and circumstances, the learned (Commissioner Appeals-1) was justified to annul the assessm ent order dated 24-06-2023, ignoring the view taken in Civil Appeal titled as "Commissioner Inland Revenue Vs M/s Bashir Ahmad) (reported as 2021 SCMR 1290) and endorsed by the august Supreme Court in "CIR Vs M/s Millat Tractors Limited" holding that a notice under section 111 can be simultaneously issued with a notice under section 122(9) of ITO, 2001? ii) Whether under the facts circumstances, the learned (Commissioner Appeals-1) was justified to place reliance on judgment of Honorable Supreme Court in Civil Appeals Nos.87 to 106 of 2024 dated 01.02.2024 by applying the same retrospectively in the instant case? iii) Whether under the facts and circumstances, on literal and plain reading of section 111 of the Ordinance there is any provision to pass a separate and specific order before passing order u/s 122
(1) of the Ordinance? iv) Whether under the facts and circumstances, the assessment order dated 24-06-2023 was not passed after finalization of the proceeding u/s 111(1)(b) of ITO, 2001 and on satisfaction of the assessing officer when repeated notices were issued to the taxpayer and provided sufficient time to explain his position on the investment made?
4. The prime question which, however, arises before us is as to whether the applicant-department can proceed in terms of Section 122(9) read with Section 111 of the Ordinance simultaneously.
5. On the above noted pivotal question, we have heard learned counsel for the applicant- department as well as the respondent and perused the record.
6. Before taking any steps to the proposition involved in this reference application, we feel no cavil to observe that first of all we have to unearth the scheme of law, embodied in Sections 111 and 122 of the Ordinance. Section 111 of the Ordinance reads as under:-
111. Unexplained income or assets. - (1) Where -
(a) any amount is credited in a person's books of account;
(b) a person has made any investment or is the owner of any money or valuable article;
(c) a person has incurred any expenditure; [(d) any person has concealed income or furnished inaccurate particulars of income including -
(i) the suppression of any production, sales or any amount chargeable to tax; or
(ii) the suppression of any item of receipt liable to tax in whole or in part,] and the person offers no explanation about the nature and source of the amount credited or the investment, money, valuable article, or funds from which the expenditure was made [suppression of any production, sales, any amount chargeable to tax and of any item of receipt liable to tax] or the explanation offered by the person is not, [in the Commissioner's opinion, satisfactory-]
(a) the amount credited, value of the investment, money, value of the article, or amount of expenditure shall be included in the person's income chargeable to tax under the head "Income from Other Sources" to the extent it is not adequately explained; and
(b) the suppressed amount of production, sales or any amount chargeable to tax or of any item of receipt liable to tax shall be included in the person's income chargeable to tax under the head "Income from Business" to the extent it is not adequately explained.
[Provided that where a taxpayer explains the nature and source of the amount credited or the investment made, money or valuable article owned or funds from which the expenditure was made, by way of agricultural income, such explanation shall be accepted to the extent of agricultural income worked back on the basis of agricultural income tax paid under the relevant provincial law.] [(2) The amount referred to in sub-section (1) shall be included in the person's income chargeable to tax:
(i) in the tax year to which such amount relates if the amount representing investment, money, valuable article or expenditure is situated or incurred in Pakistan or concealed income is Pakistan- source; and
(ii) in the tax year immediately preceding the tax year in which the investment, money, valuable article or expenditure is discovered by the Commissioner and is situated or incurred outside Pakistan [or] concealed income is foreign-source.
Explanation. - For the removal of doubt, it is clarified that where the investment, money, valuable article or expenditure is acquired or incurred outside Pakistan in a prior tax year and is liable to be included in the income of tax year 2018 and onwards on the basis of discovery made by the Commissioner during tax year 2019 and onwards and the person explains the acquisition of such asset or expenditure from sources relating to tax year in which such asset was acquired or expenditure was incurred, such explanation shall not be rejected on the basis that the source does not relate to the tax year in which the amount chargeable to tax is to be included.] (2A) For the purposes of clause (ii) of sub-section (2) of this section, the "year of discovery of foreign assets or expenditure or concealed income", shall mean the year in which the Commissioner has issued a notice requiring the person to explain the nature and source of such foreign assets, expenditure or concealed income.
[(3) Where the declared cost of any investment or valuable article or the declared amount of expenditure of a person is less than reasonable cost of the investment or the valuable article, or the reasonable amount of the expenditure, the Commissioner may, having regard to all the circumstances, include the difference in the person's income chargeable to tax under the head "Income from Other Sources" in the tax year [to which the investment, valuable article or the expenditure relates [(4) Sub-section (1) does not apply to any amount of foreign exchange remitted from outside Pakistan through normal banking channels not exceeding five million Rupees in a tax year that is en-cashed into rupees by a scheduled bank and a certificate from such bank is produced to that effect.] [Explanation. - For removal of doubt, it is clarified that the remittance through money service bureaus, exchange companies or money transfer operators shall be deemed to constitute foreign exchange remitted from outside Pakistan through normal banking channels as provided under this sub-section.] (4A) Where a taxpayer, while explaining the nature and source of any amount referred to in sub- section (1), takes into account any source of income which is subject to final tax under any provision of the Ordinance, the taxpayer shall not be entitled to take credit of any sum as is in excess of imputable income, unless the excess amount is reasonably attributed to the business activities subject to final tax and the taxpayer furnishes financial statements and accounts duly audited by a chartered accountant.
(5) The [Board] may make rules under section 2 [237] for the purposes of this section.
[Explanation. - For the removal of doubt, it is clarified that a separate notice under this section is not required to be issued if the explanation regarding nature and sources of;
(i) any amount credited in a person's books of account; or
(ii) any investment made or ownership of money or valuable article; or
(iii) funds from which expenditure was made; or
(iv) suppression of any production, sales, or any amount chargeable to tax; or
(v) suppression of any item of receipt liable to tax in whole or in part has been confronted to the taxpayer through a notice under sub-section (9) of section 122 of the Ordinance.] From the bare perusal of the above referred provision of law, it clearly manifests that whenever the department has any information resulting into an impression or understanding that grounds in Section 111(1)(a to d) relating to unexplained income or assets are attracted, calling explanation from the taxpayer becomes necessary, as till that stage, information available with the department is mere information. If any explanation offered by the taxpayer is not satisfactory in response thereto, in the opinion of the Commissioner, the said liability becomes unexplained income and is to be added to the income of the taxpayer chargeable to tax. However, if the explanation offered seems to be satisfactory, the said proceedings can be dropped and no further action is then warranted. The prime object of the above noted provision of law is to provide an opportunity of explanation to the taxpayer to contest the allegations confronted to him with regard to any of the grounds mentioned in Section 111 (a to d) where-after an opinion is to be formed by the Commissioner on the basis of said information, if any.
7. Adverting to the second limb of the relevant provision, i.e., Section 122 of the Ordinance; it is also reproduced hereunder:-
122. Amendment of assessments. - (1) Subject to this section, the Commissioner may amend an assessm ent order treated as issued under section 120 or issued under section 121, by making such alterations or additions as the Commissioner considers necessary.
[(2) No order under sub-section (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 or treated to have issued the assessm ent order to the taxpayer.] Income Tax Reference No.109 of 2024
(3) Where a taxpayer furnishes a revised return under sub-section (6) [or (6A)] of section 114 -
(a) the Commissioner shall be treated as having made an amended assessment of the taxable income and tax payable thereon as set out in the revised return; and
(b) the taxpayer's revised return shall be taken for all purposes of this Ordinance to be an amended assessm ent order issued to the taxpayer by the Commissioner on the day on which the revised return was furnished.
(4) Where an assessm ent order (hereinafter referred to as the "original assessment") has been amended under sub-section (1) [,] (3) [or (5A)], the Commissioner may further amend [, as many times as may be necessary,] the original assessment within the later of-
(a) five years [from the end of the financial year in which] the Commissioner has issued or is treated as having issued the original assessment order to the taxpayer; or
(b) one year [from the end of the financial year in which] the Commissioner has issued or is treated as having issued the amended assessment order to the taxpayer.
[(4A) In respect of an assessm ent made under the repealed Ordinance, nothing contained in sub- section (2) or, as the case may be, sub-section (4) shall be so construed as to have extended or curtailed the time limit specified in section 65 of the aforesaid Ordinance in respect of an assessm ent order passed under that section and the time-limit specified in that section shall apply accordingly.] [(5) An assessm ent order in respect of tax year, or an assessment year, shall only be amended under sub-section (1) and an amended assessment for that year shall only be further amended under sub-section (4) where, on the basis of [audit or on the basis of definite information] the Commissioner is satisfied that-
(i) any income chargeable to tax has escaped assessment; or
(ii) total income has been under-assessed, or assessed at too low a rate, or has been the subject of excessive relief or refund; or
(iii) any amount under a head of income has been misclassified.] [(5A) Subject to sub-section (9), the Commissioner may [, ] [ ] amend, or further amend, an assessm ent order, if he considers that the assessment order is erroneous in so far it is prejudicial to the interest of revenue.
[(5AA) In respect of any subject matter which was not in dispute in an appeal the Commissioner shall have and shall be deemed always to have had the powers to amend or further amend an assessm ent order under sub-section (5A).] (5B) Any amended assessm ent order under sub-section (5A) may be passed within the time-limit specified in sub-section (2) or sub-section (4), as the case may be.]
(6) As soon as possible after making an amended assessment under [subsection (1), sub-section
(4) or sub-section (5A)], the Commissioner shall issue an amended assessment order to the taxpayer stating-
(a) the amended taxable income of the taxpayer;
(b) the amended amount of tax due;
(c) the amount of tax paid, if any; and
(d) the time, place, and manner of appealing the amended assessment.
(7) An amended assessm ent order shall be treated in all respects as an assessment order for the purposes of this Ordinance, other than for the purposes of sub-section (1).
(8) For the purposes of this section, "definite information" includes information on sales or purchases of any goods made by the taxpayer, [receipts of the taxpayer from services rendered or any other receipts that may be chargeable to tax under this Ordinance,] and on the acquisition, possession or disposal of any money, asset, valuable article or investment made or expenditure incurred by the taxpayer.
[(9) No assessm ent shall be amended, or further amended, under this section unless the taxpayer has been provided with an opportunity of being heard [j] Provided that order under this section shall be made within one hundred and [eighty] days of issuance of show cause notice or within such extended period as the Commissioner may, for reasons to be recorded in writing, so however, such extended period shall in no case exceed ninety days. This proviso shall be applicable to a show cause notice issued on or after the first day of July, 2021.
Provided further that any period during which the proceedings are adjourned on account of a stay order or Alternative Dispute Resolution proceedings or agreed assessment proceedings under section 122D or the time taken through adjournment by the taxpayer not exceeding sixty days shall be excluded from the computation of the period specified in the first proviso.] Underlining supplied for emphasis From the bare reading of the above provision of law, it is obvious thereunder that the Commissioner has been empowered to amend an assessment order: treated as issued under Sections 120 or 121 of the Ordinance by making such alterations or additions, as the Commissioner considers necessary. However, under Section 122(5) of the Ordinance, an assessment order in respect of a tax year, or an assessme nt year, shall only be amended under sub-section (1) and an amended assessm ent for that year shall only be further amended under sub-section (4) where, on the basis of definite information acquired from an audit or otherwise, the Commissioner is satisfied that any of the grounds in the said provisions are sufficient enough to make amendments. Section 122(8) of the Ordinance provides what constitutes definite information for the purposes of this provision. On the other hand, sub-section 9 of Section 122 of the Ordinance stipulates that no assessm ent shall be amended, or further amended, under this Section unless the taxpayer has been provided with an opportunity of being heard.
8. From the joint analysis of both the above provisions of law, it becomes crystal clear that initiation and culmination of the proceedings under Section 111 of the Ordinance are sine qua non before taking any action in terms of Section 122 of the Ordinance to amend the assessm ent on the basis of proceedings undertaken under Section 111 of the Ordinance.
9. To the above effect, guidance can be sought from the case of COMMISSIONER INLAND REVENUE, LAHORE versus Messrs MILLAT TRACTORS LIMITED, LAHORE and others (2024 SCMR 700). The relevant extract from the same is reproduced hereunder:-
5. We have heard the learned counsel for the parties and have gone through the record of the cases. The questions requiring determination in the instant matters are two-fold and connected: (i) whether a separate notice is required under Section 111 of the Ordinance or whether a notice under Section 122(9) is enough to initiate proceedings for amendment of the assessment on the grounds mentioned in Section 111 of the Ordinance; and (ii) the effect of the Explanation introduced in Section 111 of the Ordinance to the matters at hand.
6. In order to answer the above questions, it is important to understand the scheme behind Section 111 and its effect on amendment of assessments under Section 122 of the Ordinance. Section 111(1) provides that where any of the grounds in Section 111(1)(a) to (d) are applicable, and the taxpayer offers no explanation or the explanation provided, in the opinion of the Commissioner, is not satisfactory, this unexplained income or value of asset(s) shall be included in the income of the person chargeable to tax. For ease of reference, Section 111 (1) of the Ordinance is reproduced below:
111. Unexplained income or assets.---(1) Where -
(a) any amount is credited in a person's books of account;
(b) a person has made any investment or is the owner of any money or valuable article;
(c) a person has incurred any expenditure; or
(d) any person has concealed income or furnished inaccurate particulars of income including -
(i) the suppression of any production, sales or any amount chargeable to tax; or
(ii) the suppression of any item of receipt liable to tax in whole or in part, and the person offers no explanation about the nature and source of the amount credited or the investment, money, valuable article, or funds from which the expenditure was made suppression of any production, sales, any amount chargeable to tax and of any item of receipt liable to tax or the explanation offered by the person is not, [in the Commissioner's opinion, satisfactory, the amount credited, value of the investment, money, value of the article, or amount of expenditure suppressed amount of production, sales or any amount chargeable to tax or of any item of receipt liable to tax shall be included in the person's income chargeable to tax under head "Income from Other Sources" to the extent it is not adequately explained]: Provided that where a taxpayer explains the nature and source of the amount credited or the investment made, money or valuable article owned or funds from which the expenditure was made, by way of agricultural income, such explanation shall be accepted to the extent of agricultural income worked back on the basis of agricultural income tax paid under the relevant provincial law.
Therefore, once the department has information resulting in an impression or understanding that the grounds in Section 111(1)(a) to (d) relating to unexplained income or asset are attracted, an explanation is called from the taxpayer. At this stage, the information available with the department is mere information. If, however, the taxpayer fails to render any explanation, or the explanation offered by the taxpayer is not satisfactory in the opinion of the Commissioner, the said liability becomes unexplained income and is to be added to the income of the taxpayer chargeable to tax. If the explanation offered is satisfactory, the said proceedings can be dropped and no action is then required. Therefore, through the opportunity of an explanation, the taxpayer can contest the allegations put to the taxpayer with regards to any of the grounds mentioned in Section 111(1) (a) to (d), whereafter, an opinion is to be formed by the Commissioner based on the said explanation, if any. As such, the said provision is essentially of an inquisitorial nature where the taxpayer is confronted with the information available with the department and an explanation is sought, and the resulting opinion of the Commissioner is not an adverse order per se but can be used to pass an adverse order against the taxpayer by adding the unexplained income to the income of the taxpayer chargeable to tax. The other provisions of Section 111 also do not empower the Commissioner to pass an adverse order and only provide statutory instructions as to how the unexplained income or asset, provided an opinion under Section 111(1) is given by the Commissioner to this effect, is to be added to the income of the taxpayer chargeable to tax. Therefore, the essence of the proceedings under Section 111 lies within Section 111(1) of the Ordinance, wherein the taxpayer is confronted with the information available with the department, and the Commissioner forms an opinion as to the unexplained income or assets of the taxpayer or otherwise.
7. It is settled law that within the contemplation of Section 111(1), an explanation is to be called from a taxpayer by issuing a specific notice under Section 111 of the Ordinance, confronting the taxpayer with the information gathered by the department and specifying which of the grounds in Section 111(1) is applicable. It is only after this that an appropriate order can be passed under this provision in the form of an opinion of the Commissioner, thus concluding the proceedings under Section 111.
8. On the other hand, Section 122 of the Ordinance provides for amendment of assessments. The provisions of Section 122 relevant to the matters at hand are reproduced below for reference: S. 122. Amendment of assessments.---
(1) Subject to this section, the Commissioner may amend an assessment order treated as issued under section 120 or issued under section 121, or, by making such alterations or additions as the Commissioner considers necessary. ...
(5) An assessm ent order in respect of a tax year, or an assessment year, shall only be amended under subsection (1) and an amended assessment for that year shall only be further amended under subsection (4) where, on the basis of [definite information acquired from an audit or otherwise], the Commissioner is satisfied that -
(i) any income chargeable to tax has escaped assessment; or
(ii) total income has been under-assessed, or assessed at too low a rate, or has been the subject of excessive relief or refund; or
(iii) any amount under a head of income has been mis-classified. ...
(8) For the purposes of this section, "definite information" includes information on sales or purchases of any goods made by the taxpayer, receipts of the taxpayer from services rendered or any other receipts that may be chargeable to tax under this Ordinance, and on the acquisition, possession or disposal of any money, asset, valuable article or investment made or expenditure incurred by the taxpayer.
(9) No assessm ent shall be amended, or further amended, under this section unless the taxpayer has been provided with an opportunity of being heard.
In view of the above, under Section 122(1) of the Ordinance, the Commissioner has been empowered to amend an assessm ent order treated as issued under Sections 120 or 121 by making such alterations or additions as the Commissioner considers necessary. However, under Section 122(5), an assessm ent order shall only be amended under Section 122(1) or an amended assessm ent can only be further amended under Section 122(4) where, on the basis of definite information acquired from an audit or otherwise, the Commissioner is satisfied that any of the grounds in the said provision are satisfied. Section 122(8) provides what constitutes definite information for the purposes of this provision. Finally, Section 122(9) stipulates that no assessment shall be amended, or further amended, under Section 122 unless the taxpayer has been provided with the opportunity of being heard.
9. Therefore, pursuant to Section 122(5) of the Ordinance, the terminus a quo for initiation of proceedings under Section 122 is when the Commissioner, on the basis of definite information acquired from an audit or otherwise, is of the opinion that any of the grounds mentioned in Section 122(5)(i), (ii) or (iii) is applicable. Thereafter, a notice under Section 122(9) of the Ordinance, specifying the above ground(s), is sent to the taxpayer. If the taxpayer satisfactorily responds to the notice sent under Section 122(9), the proceedings can be dropped. Where, however, the response is not satisfactory, and the Commissioner is satisfied that any of the grounds in Section 122(5) are applicable, the Commissioner can amend the assessment order under Section 122(1) or further amend an amended assessment under Section 122(4) read with Section 122(5). As such, for initiation of proceedings under Section 122, the Commissioner must assess if any of the grounds under Section 122(5) are applicable, and such an assessment is to be based on definite information acquired from an audit or otherwise, which is the prerequisite to attract the provisions of Section 122(5) of the Ordinance.
10. It is in this sequence of proceedings that the initiation and culmination of proceedings under Section 111 of the Ordinance becomes necessary before action can be taken under Section 122 to amend assessm ents on the basis of proceedings undertaken under Section 111. As noted above, the information available with the department under Section 111(1) is mere information. It is only after the taxpayer is confronted with this information through a separate notice by calling for an explanation, and when no explanation is offered or the explanation is not satisfactory in the opinion of the Commissioner under Section 111(1), that it transforms or crystallizes into "definite information" for the purposes of action under Section 122(5) for amendment of assessment under Section 122.
The taxpayer will then be confronted with the grounds applicable under Section 122(5) through a notice under Section 122(9) of the Ordinance. As such, where the Commissioner has formed an opinion against the taxpayer as to the fulfilment of one of the grounds mentioned in Section 111(1)
(a) to (d) of the Ordinance, and is of the view that any of the grounds in Section 122(5) is applicable, the process under Section 122 is to be initiated to amend assessments through a notice under Section 122(9). Thus, unless the proceedings under Section 111(1) are initiated and completed, Section 122(5) cannot be given effect to and no notice under Section 122(9) can be issued for the purposes of amending an assessme nt through an addition contemplated under Section 111. It is to be noted that the present cases are related to tax years up till 2020. After the amendment introduced in Section 122(5) of the Ordinance through the Finance Act, 2020, the words "definite information acquired from an audit or otherwise" have been substituted with "audit or on the basis of definite information". Therefore, the interpretation rendered above as to the applicability of Section 122(5) may not be applicable to cases post 2020 and the effect of the substituted expression will have to be determined in an appropriate case in the future.
11. Therefore, to answer the first question, and as applicable to the matters at hand, before an assessm ent can be amended under Section 122 on the basis of Section 111, the proceedings under Section 111(1) are to be initiated, the taxpayer is to be confronted with the information and the grounds applicable under Section 111(1) through a separate notice under the said provision, and then the proceedings are to be culminated through an appropriate order in the shape of an opinion of the Commissioner. This then becomes definite information for the purposes of Section 122(5), provided the grounds mentioned in Section 122(5) are applicable. The taxpayer is then to be confronted with these grounds through a notice under Section 122(9) and only then can an assessm ent be amended under Section 122. This view has also been recently taken by this Court in Bashir Ahmed wherein it has also been held that a notice under Section 111 can be simultaneously issued with a notice under Section 122(9), however, proceedings under Section 111 have to be finalized first in terms of an opinion of the Commissioner so as to constitute definite information, as is required under Section 122(5) of the Ordinance.
12. We, however, underline and clarify that even where a notice under Section 111 is issued simultaneously with a notice to amend an assessment under Section 122(9) of the Ordinance, no proceedings can be undertaken under the latter until the proceedings under Section 111 are finalized and result in an opinion against the taxpayer. This is because, even if some basis for action under Section 111 is mentioned in a notice under Section 122(9), it cannot constitute definite information for the purposes of Section 122(5). The proceedings under the notice issued under Section 122(9) can only be formally initiated when the requirement of definite information is satisfied under Section 122(5) after finalization of the proceedings under Section 111 through an opinion of the Commissioner. Therefore, where no opinion is formed against the taxpayer under Section 111, the proceedings under both provisions i.e., Sections 111 and 122 would lapse, and the notice under Section 122(9) would be of no legal effect. Where, however, there is an opinion formed against the taxpayer as definite information for the purposes of Section 122(5), the proceedings on the notice issued under Section 122(9) can formally proceed and shall be deemed to have commenced. It must also be noted that where the opinion formed against the taxpayer under Section 111 is materially different from what has been confronted to the taxpayer through the notice already issued under Section 122(9), and the Commissioner is of the view that another or different ground under Section 122(5) is applicable, a fresh or supplementary show cause notice under Section 122(9) must be issued to the taxpayer by confronting such ground(s) to the taxpayer. This is in view of the right to be treated in accordance with the law, and the principles of fair trial and due process enshrined in Articles 4 and 10A of the Constitution, respectively, and in terms of settled law that once a show cause notice is issued, the original adjudication on the said show cause notice can only be based on the grounds and allegations levelled therein.
10. So far as contention of learned counsel for the applicant department that in the light of principles laid down in case of COMMISSIONER INLAND REVENUE ZONE BAHAWALPUR, REGIONAL TAX OFFICE, BAHAWALPUR versus MESSRS BASHIR AHMED (DECEASED) through L.Rs.(2021 SCMR 1290) there is no impediment in the way of applicant-department to proceed under Section 111 and 122(9) of the Ordinance simultaneously; suffice to observe that in the said case, notice under Sections 122(1), 122(5) and 122 (9) of the Ordinance was issued in the first instance which followed the notice under Section 111 of the Ordinance and in that backdrop, it was held that the amendment can be made unless proceedings under Section 111 of the Ordinance first initiated. However, as a passing reference, it was observed as under:- "8. ...It is possible for both steps, i.e., the finding under section 111 and the amendment of the deemed assessm ent order to be done together, and for the notice under section 111 to be issued along with the notice to amend. However, in such a case, the proceedings and notice(s) must expressly so state on the face of it. Here, the proceedings under section 111 were, as it were, "short circuited" altogether since the department began with the premise that it already had definite information available with it, and the concerned officer proceeded accordingly. ..."
The above cannot be termed as ratio decidendi and it may be an obiter dictum. Even otherwise, in the case of Messrs MILLAT TRACTORS LIMITED, LAHORE, supra, Bench of equal members of the Hon'ble Judges of the Supreme Court of Pakistan when held in clear terms that the proceedings under Section 122(9) of the Ordinance cannot be launched unless the proceedings under Section 111 of the Ordinance are initiated and completed, the judgment in the case of Messrs MILLAT TRACTORS LIMITED, LAHORE, supra, is later in time which without any hint of doubt shall prevail. Guidance to this effect be sought from the cases of Engineer JAMEEL AHMAD MALIK versus SHAUKAT AZIZ and 6 others (2007 CLC 1192), Mst. HIRA REHMAN versus CHANCELLOR, GOVERNMENT COLLEGE UNIVERSITY, LAHORE and 2 others (2011 CLC 377) and MUHAMMAD HANIF and 2 others versus MUHAMMAD SADIQ and 14 others (2019 MLD 846).
11. The nutshell of the above discussion is that before taking any steps in term of Section 122(9) of the Ordinance, the requirement of Section 111 of the Ordinance is mandatory. We thus, cannot draw any distinction of the impugned order passed by the Commissioner. Resultantly, this appeal fails and questions of law raised therein are answered accordingly.
12. Office to transmit a copy of this judgment under seal of the Court to the concerned quarters as per Section 133(8) of the Ordinance.