NASIM SIKANDAR, J. - This further appeal under Section 27 of the Wealth Tax Act, 1963 calls into question a consolidated order recorded by the Lahore Bench of the Income Tax Appellate Tribunal on 11.8.1999 for the Assessm ent Years 1993-94 to 1997-98 whereby an order under Section 17-B rendered by I.C.A. Wealth Tax Lahore Range-ll, dated 8.5.1999 was maintained.
2. The appellant is an assessee of the Income Tax and Wealth Tax Department. 0n Wealth Tax side during the assessm ent years involved, she returned only three properties namely a self-occupied house in Canal View Housing Society, a house in Tipu Block, Allama Iqbal Town, Lahore and a plot in Chinar Bagh, Lahore. The self-occupied house having been claimed exempt is not in issue. The value of the plot in Chinar Bagh, Lahore is also not disputed by any of the parties, It is only house No. 12, Tipu Block, Allama Iqbal Town, Lahore which is subject-matter of controversy. This house is admittedly rented out to different tenants through different rent-deeds. The original assessments in her respect were framed for the Assessment Years 1993-94 to 1997-98 under Section 16(3) of the Wealth Tax Act, 1963. In the first four years, the declared Value of the house respectively Rs.21,60,000/-, 18,00,000/- and Rs.24,00,000/- was accepted by the revenue, In the year 1997-98, however, as against the declared value of Rs.24,00,000/- it was assessed at Rs.79,200,000/- though subsequently by rectification the value was brought down to Rs.65,40,000/-.
3. On 13.4.1999, I.A.C. Wealth Tax Range-II, Lahore served the assessee with a notice under Section 17-B of the Act expressing his intention to re-open the assessment orders on the ground that all of them were erroneous insofar as these were prejudicial to the interest of the Revenue, In the first four years the objection was made against acceptance of the declared value while in the 5th year viz. 1997-98, it was noted that the Assessing Officer had allowed 25% deduction in gross annual rent ignoring CBR Circular No. 5 of 1994, dated 19.9.1994. In the view of the I.A.C. Where property was rented out to tenant charging rent both for occupation and for fittings and fixtures separately, the claimed deduction for fittings and fixtures after the year 1994 was no more available.
4. In reply, the assessee on the very first opportunity admitted that rebate on account of A.L.V.
Pertaining to rentals of furniture, fittings and fixtures was not available in the year 1997-98. As to the value of the house in question in 5 years involved, it was readily admitted that factually the value of the house was assessable respectively at Rs. 21.87,500/-, 54,00,000/-, 42,25,000/- and Rs.76,14,000/- for the years 1993-94 to 1997-98. The reply made by the assessee was duly accompanied with a complete chart on the basis of which the afore-said valuation was made. The Revising Officer, however, ignored the same and assessed the wealth of the assessee at Rs.48,76,577/-, 56,53,926/-, 77,72,316/- and Rs.84,49,671/- as against the original assessments made at Rs.25,36,577/-, 20,53,926/-, 23,72,316/- and Rs.28,29,671/-. In the last year viz 1997-98, the net wealth of the assessee was assessed af Rs.89,49,810/-. Also the assessee was found to have concealed/furnished in-accurate I particulars of wealth for all the aforesaid years. According to / him the declared value of the house in question was much less when compared with the value which should have been declared by the assessee "on the basis of the lease agreement obtaining on file". Therefore for deliberately furnishing of in-accurate particulars of wealth, penal proceedings under Section 18 of the Wealth Tax Act, 1963 were directed to be initiated separately. Also additional wealth tax was levied at various sums on the basis of the difference between the returned wealth and the one ultimately determined by the Revising Officer.
5. The Lahore Bench of the Income Tax Appellate Tribunal on appeal partly agreed with the submissions made before it by the assessee after referring to an earlier judgment, It was directed that for the Assessm ent Year 1994- 95 and 1996-97, the value of the house in question should be taken at Rs.54,00,000/- and Rs.76,14,000/- while for the year 1993-94 it was directed to be taken at Rs.54,00,000/-. In the Assessm ent Year 1995-96 the valuation of the house in question was determined at Rs.64,50,000/- while in the year 1997-98 it was maintained on the statement of the assessee. However, the contention of the assessee against the imposition of the additional tax was rejected on the ground that its levy was mandatory and therefore the Revising Authority had no discretion to delete the same.
6. Before us, it is case of the assessee that the Tribunal erred both on law as well as in fact in maintaining the imposition of additional tax. It is claimed that the Tribunal wrongly observed that imposition of additional tax under Section 31-B was mandatory, It is submitted that a simple reading of the provision goes to state that the calculation of additional fax is based upon the failure of an assessee to pay tax with the return which falls short of 80% of the tax payable under Section 16 of the Act. On the other hand, it is claimed that the petitioner had made no default while submitting the returns though subsequently she accepted that some of the valuations adopted in respect of the aforesaid house in question were less than the required assessment. Also it is claimed that there was no fault on the part of the assessee while putting in original returns inasmuch as these were accompanied with the lease Agreements and therefore nothing had been held back or concealed on the part of the petitioner, In support of the Submissions reliance is placed upon 1995 PTD 345 Re: Malt- 79 Manufacturers v. Collector and PLD 1978 S.C. 89 Re: Shamroz Khan and another v. Muhammad Amin and others.
7. The learned counsel for the revenue, however, supports the order of the Tribunal maintaining the levy of additional tax.
8. The appellant has framed five questions of Jaw for our consideration which are said to have arisen out of the order of the Tribunal. However, we are of the view that none of them except question No. 1 arises out of the order. Questions Nos. 2 to 5 were never raised before the Tribunal nor these were ruled upon in the impugned order. Therefore, we proceed to answer the question No. 1 which is stated below:- "Whether the Appellate Tribunal has misconstrued the provisions of Section 31-B of the Wealth Tax Act, 1963 (hereinafter called the Act) in holding that the imposition of additional tax is mandatory provision?
9. After hearing the parties we are persuaded to agree that in the given facts and circumstances neither there was any justification to levy additional tax nor in fact it was computed in a manner contemplated law. The petitioner returns her net wealth without holding back any information with regard to the receipt of rent. Admittedly the returns were duly accompanied with the lease agreements which were also considered by the Assessing Officer at the relevant time while accepting the disclosed value of the house in question, It will further be seen that on being confronted the assessee readily accepted that due to inadvertence on the part of both the parties, the value of the house in question has been assessed at a low rate. Her claim of being one of the highest tax-payers and having never defaulted was brushed aside without a justifiable reason, In fact the above claims have not been seriously challenged even before us.
10. The learned counsel for the Revenue in terms of the judgment of the Tribunal claims that the use of word "shapi in Section 31 -B makes it obligatory on the part of the Assessing Officer to impose additional tax. However, the submissions so made are against the ratio settled by the Hon'ble Supreme Court of Pakistan in Re: Shamroz Khan and another (supra), In that case, their lordships while interpreting Order VIH, Rules 11 and 12 wherein the expression "he shall be liable to have his defence, if any, struck out" conclude d that it was not incumbent upon the Court to strike of the defence. Their Lordships elucidated the meanings of word "shall" as used in various statutes, In the other case relied upon in Re: Malt-79 Manufacturers (supra), this Court while interpreting the expression "shall be liable" as used in the parallel provision of Section 30 of the Sales Tax Act, 1990 concluded that despite the use of the expression "shall" a description was vested in the or not to levy sales tax even in the event of failure of a person to pay the sales tax keeping in view the facts and circumstances of the case and reasons for non-payment.
11. The expression used in Section 31-B is identical to the one as used in Section 34 of the Sales Tax Act, 1990. The facts as earlier re-doubted clearly show that the contumacious nor she has been g any fact from the Revenue. If there was a mistake in low declaration of the G.A.L.V. Of the property in question men the revenue officer at the relevant time was a contributory inasmuch as he agreed with the basis on which the assessee had computed the valuation. After having been confronted she immediately tax at the valuation which was close to the one as finally determined by the Tribunal. Additional tax or penalty should not be imposed, only for the reason that it is legally permissible to do so. The opinion expressed by the Revising Authority and then the Tribunal that levy of additional tax in a mechanical manner, was to date back to the time of filing of returns is also not justified in the facts of the case as de-counted earlier.
12. Therefore, keeping in view the ratio settled in Re: Malt-79 Manufacturers (supra) we will return a negative answer to the aforesaid question of law. Resultantly, the levy of additional tax shall stand cancelled.