ORDER ch. Irshad AHMAD, J.- This order disposes of 54 above titled appeals, filed by the I.T.Os., as all of them raise a common question o law and the question is whether or not an assessment order contained in a computer print-out will be deemed "an order in writing" as envisaged by section 59- A(l) of the Income Tax Ordinance, 1979 notwithstanding the fact that the computer printout is not signed by the assessing officer.
2. Section 55 of the Income Tax Ordinance, 1979, provides that every person whose total income for any income year exceeds the maximum limit which is not chargeable to tax shall furnish a return of his total income. Subsection (1) of section 59-A of the Ordinance provides that if the Deputy Commissioner is satisfied without requiring the presence of the assessee or production by him of any evidence that return furnished under section 55 ibid is correct and complete, he shall, by an order in writing, assess the total income of the assessee and determine the tax payable on the basis of such return. Subsection
(2) of section 59-A ibid provides that the provisions of subsection
(3) of section 59 of the Ordinance, shall apply to an assessment and determination under this section as they apply to an assessm ent and determination under that section. Subsection n(3) of section 59 ibid provides that in assessing total income and determining the tax payable under subsection (1) the Deputy Commissioner may make such adjustments as may be necessary including any adjustment under section 34 t 38, 50, 53 or 54, the rules made under section 165, the First Schedule and the Third Schedule.
3. Since the last few years when the Tax Administration has introduced computer technology in making assessm ents, as per instructions of the Administration, if an assessing officer is satisfied that he can assess the total income of an assessee and determine the tax payable by him on the basis of the return filed by the assessee or making such adjustment as may be necessary within the meanings of subsection (3) of section 59 he furnishes the necessary data t the section responsible for operating the computer and on the basis of said data the computer produces a print-out containing an assessm ent order, the computation from commonly known as I.T.-30 and a demand notice showing the amount of tax payable by the assessee and also requiring him to pay the said amount if payable.
4. In these cases the assessing officer made certain adjustments in the returns furnished by the assessee and made few additions to the taxable income. A computer print-out containing an assessm ent order, computation from ie. I.T-30 and demand notice was issued to the assessee.
5. The assessee objected to the assessment orders through appeals before the Appeal Commissioner on the ground that the assessing officer had wrongly made adjustments in the returns and made additions to their income.
6. The Appeal Commissioner noted that although the computer print-out sheet contained three documents, ie., an assessm ent order, a computation from ie. I.T-30 and demand notice but the sheet had been stamped with I.T.O's signature only at one place ie., under I.T-30. Although the assessee had not objected to the assessment order on that ground but the Appeal Commissioner suo mom taking cognizance of the point by identically worded orders which are subject matter of appeals before this Tribunal in I.T.As. Nos. 29, 33 and 913 to 953/IB of 1992-93 held that "in the absence of any signatures of the assessing officer on the assessment order and the demand notice, no demand can be created. In fact, there is no assessment order in existence at all. In the absence of any assessm ent order, the present appeals become infructuous and stand dismissed as there is not cause of any grievance at the present". Similarly by an other set of identically worded orders which are also the subject- matter of appeal before this Tribunal in I.T.As. Nos. 22 to 28 and 30 to 32/IB of 1992-93 the Appeal Commissioner held that "on account of the deficiency that the assessm ent order, computation form ie. I.T-30 and demand notice has not been signed by the I.T.O, the demand created is certainly illegal and stands cancelled".
'7. Through these appeals, the I.T.O, has objected to the order of the Appeal Commissioner on the ground that since the computer print out contains assessment order, computation from i. e. I.T-30 and the demand notice on a single sheet of paper and as the said sheet was signed by the I.T.O., all the above documents will be deemed to have been signed. Therefore, the Appeal Commissioner was not justified t hold that no assessment has, in fact, been made by the assessing officer by "an order in writing" on the assessee.
8. We have heard Mr. Nasir Hussain, D.R. For the I.T.O, and Mr. Zahid Yasin Mufti, advocate for the assessee in I.T.As. Nos. 913 to 934 and 936 to 944 and the assessee in person in I. T.A. No. 935. None appeared on behalf of the assessee in the remaining appeals in spite of the fact that notices of hearing of appeals were sent ot the assessee through registered post at the address given in the Memos of Appeal.
9. From perusal of the assessm ent records we have, as a question of fact, found that a single sheet computer print-out contains an assessment order, a computation form ie. I.T-30 and demand notice and the sheet has been stamped with I.T.O's. Signature only at one place ie. Under I.T.-30 which is the last document on the sheet.
10. At the very outset it might be pertinent to point out that through a number of orders which are subject-matte of appeal in I. T.As. Nos. 29. 33 + 913 to 953 the Appeal Commissioner has dismissed the assessee' appeals on the ground that the appeals were infructuous as there was no cause of grievance for the assessee at present, but although the circumstances of other cases were also similar but in other cases the assessee' appeals wee accepted and the demand of tax made in the demand notice was cancelled.
11. The First question that arises for consideration is whether the Appeal Commissioner was justified to declare an assessee appeal as infructuous or to allow an assessee appeal and to cancel the demand of tax for the reason that the assessment order or the demand notice contained in the computer printout was not signed by the I.T.O. The above question is to be considered with reference to the proposition whether or not the assessee can file an appeal under section 129 of the Ordinance against an assessm ent order if he was not liable to pay tax on the basis of the demand made in an unsigned demand notice following an unsigned assessment order. The appeal Commissioner's orders proceed on the assumption that if no valid demand of tax is outstanding against the assessee he has not right of apneal or that his appeal against an assessment order is bound to succeed if no valid demand of tax is outstanding against the assessee. The above assumption does not appear to be well- founded. Section 129 of the Ordinance provides that an assessee objecting to an order made by an Assessing Officer under sections 59 or 59-A,. 62, 63 etc., may appeal to Appeal Commissioner against such order, The above right of appeal is not subject to the condition that a valid demand of tax must be outstanding against the assessee. Reference to notice of demand in section 130 of the Ordinance is only for the purpose of computation of period of limitation within which an assessee can file an appeal under section 129 ibid. Thus, if a valid notice of demand has not been served on the assessee he can wait for filing the appeal until such time as a valid notice of demand is served on him but a t the same time nothing debars the assessee to file an appeal against an assessment order made by an Assessing Officer under sections 59 or 59-A, 62, 63 etc. Of the Ordinance even if no notice of demand has been served on him.
12. Section 59, 59-A 62 etc. Of the Ordinance relating to assessment provide that the assessment shall be made by an assessing officer "by an order in writing". The question is whether or not a computer print-out based on the data furnished by the assessing officer after examining the return and making necessary adjustments, if any, amounts to an order I writing. The Appeal Commissioner has taken the view that since the computer print-out was not signed by the' assessing officer it has not validity. He has not quoted nay provision of law or decisional rule in his order to suggest that unless an assessment order is signed by an I.T.O, it cannot be deemed to have been made by the assessing officer "in writing". Mr. M. Zahid yasin Mufti, Advocate appearing on behalf of certain assessee referring to the decision of the Karachi High Court in case C.I.T, v.
Malik Wallayat Hussain (1976) 33 Tax 85 and the decision of this Tribunal reported 1987 PTD (Trib.)
129 has supported the Appeal Commissioner's Order. We have gone through the precedent, but none of them says that an assessm ent order made in writing shall not be deemed to be a legal order unless it is signed by the assessing officer. The Karachi High Court's decision proceeds to interpret the provisions of the Income-tax Act 1922 (since repealed) which provided that additional tax/penal interest could not be levied unless the default of the assessee was noted by the assessing officer while making regular assessment order. The High Court's decision does not say that the assessm ent order must be signed by the assessing officer and unless it is signed it has no validity. Similarly; this Tribunal's precedent relates to a situation where no assessment order in writing was made by the assessing officer. It does not decide the question whether an order made by the assessing officer but not signed by him shall not be deemed to be an order in writing. Thus, the above precedents do not provide any help to decide the question involved in these appeals.
13. As noted earlier in the cases before us the computer, on the basis of the data provided by the assessing officer, had produced a single sheet print-out containing three documents. The printout was signed with I.T.O, by putting replica of his signature at one place. It is an accepted rule that a document bearing rubber stamp replica of signature is deemed in law to be signed. The question whether or not the computer print-out shall be deemed to be "an order in writing" requires to be attended to from two angles. Firstly, whether all these documents in single sheet computer print- out shall be deemed to have been signed although the sheet has been signed at only one place, and secondly, whether or not a computer print-out, even if it has not been signed, can be deemed to be "an order in writing". So far as the first angle is concerned, did not intend to sign all the documents contained in. Or the contents of, the sheet. But the starting presumption will be that he had signed all the documents or the contents contained in the sheet. Looking from the second angle we are of the view that notwithstanding our findings that the assessment order, the computation form ie. I.T. 30 and demand notice will be deemed to have been signed by the assessing officer if the sheet containing them has been signed at one place the expression *"an order made in writing" does not necessarily include "and signed".
14. When a statute requires that an order shall be made in writing it requires that the order shall be contained in a document as distinguished from an order made orally. The expression document is defined in section 29 of the Pakistan Penal Code, section 3(16) of the General Clauses Act, 1897 and Article 2(1 )(b) of Qanun-e-Shahdat Order, 1984. The definition of the representative as given in Qanun-e-Shahadat reads as under:- ARTICLE 2(1 )(b) "'document' means any matter expressed or described upon nay substance by means of letters, figures or marks or by more than one of those amounts intended to be used, or which may use, for the purpose of recording that matter; Illustrations - A writing is a document; - Words printed, lithographed or photographed are documents; - A map or plan is a document; - An inscription on a metal plat of stone is a document; - A caricature is a document."
15. None of the definitions in the above statutes prescribes signature of the scribe of the document as a condition for a matter to be a document. If someone writes any matter with his own hand and does not sign, it will be a valid document in the absence of any provision of law requiring that the matter must be signed he fore it is accepted as a document. A libel published in a handbill will be deemed to have been published by the maker even if it is not signed by him. Similarly, the document produced by mechanical process on the basis of the information of data furnished to the machine will be deemed to be a document written by the person who furnished such information. A book produced by printing method shall be deemed to be a writing of the author although it does not contain his signatures. It may be relevant ot point out that none of the sections of the Ordinance containing the expression "by an order in writing" does not ^ include the words "and signed".
16. The introduction of computer technology requires appropriate change in the ordinary rule governing the proof of a fact contained in a document. The ordinary rule governing the proof of any statement contained in a document is that it must be proved that the writing was in author's handwriting, (not necessarily that the document has been signed by the author). However, the statement contained in a computer print-out can be I proved by showing that the statement was produced by the computer during a period over which the computer was used regularly in the ordinary course, of the activities. The conditions to prove statements produced by computer are laid down in 17 Hals bury's Laws of England (4th Edition) para. 59 and are in brief as follows:-
(i) That the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period;
(ii) over that period there was regularly supplied to the I computer in the ordinary course of those activities information of the kind contained the statement or of the kind from which the information was contained is derived;
(iii) throughout the material par to that period the computer was operating properly or if not with any respect in which it was not operating properly or was out of operation during that part of period was not such as to affect the purpose of the document or the accuracy of its contents; and
(iv) the information contained in the statement produces or is derived from information supplied the computer in the ordinary course of those activities.
17. The computers are more than mere typewriters or word processors. In the absence of any evidence regarding the malfunctioning of the computers it will be presumed the statements produced by the computers are correct and carry the same authenticity as are required to be established by a statement "in writing and signed". Thus, in our view a computer print-out containing the assessm ent order will be deemed to be an assessment order made by Assessing Officer in writing as required by section 59-A of the Ordinance.
18. For the above reasons we hold that the Appeal Commissioner was not justified to hold that the assessee' appeals were infructuous or that the demand created against the assessee was illegal.
The I.T.O's. Appeals are accepted. The Appeal Commissioner's Orders are vacated and he is directed to decide the above appeals in accordance with law.