JAWWAD S. KHAWAJA, J. - At the instance of the revenues well as an individual assessee of the Income Tax Department, the Lahore Bench of the Income Tax Appellate Tribunal has made this cross-reference. As drawn by them, following is the STATEM ENT OF THE CASE.
These two applications one by the assessee "individual" and the other by the Commissioner of Income Tax Zone-A, Lahore have been moved under Section 136 of the Income Tax Ordinance to seek reference to the Court of the following questions of law which are said to arise out of the Tribunal's order dated 26.6.1988 on ITA No. 6759/LB of 1985- 86:-
(1) "Whether assessm ent for the year 1980-81 on the initiation of proceedings under Section 56 on 13.3.1985 was valid?
(2) Whether on the facts and in the circumstances of the case it was mandatory with the 1TO to initiate proceedings for 1980-81 through issuance of notice under Section 65 after the end of the relevant Assessm ent Year i.e. 30.6.81."
PROPOSED BY THE DEPARTM ENT.
(1) "Whether on the facts and in the circumstances of the case the Tribunal was justified to hold that notice under Section 56 can be issued only for such assessment year as is covered by the Income Tax Ordinance, i.e. 1979-80 onwards and not for the years prior to that?
2. The facts (in brief) leading :o the above Reference Application and the proposed questions are that the Assessee, an "individual" was not an "assessee" defined in the Income Tax Ordinance, 1979.
Therefore, no return of Income for the Assessment Year 1980-81 was voluntarily filed as required by Section 55 of the Ordinance. The Assessing Officer came to have the knowledge that the Assessee had purchased a godown on 1.8.1979 for a consideration of Rs.200,000 and had incurred incidental expenses thereon at Rs.25,000. Since, no return was obtaining the Assessing Officer issued a notice under Section 56 of the Ordinance summoning the same. This notice was not responded to. A notice under Section 61 was issued which also remained uncompiled. The assessment was, therefore, frame ex part by resort to Section 63 of the Income Tax Ordinance at a total income of Rs.225,000 comprising of "deemed as income" by resort to clause (aa) of sub-section (1) of Section 13 of the Income Tax Ordinance. The appeal before the learned Commissioner (Appeals), Zone-A, Lahore having been rejected by his order dated 31.5.1986 the Assessee came in second appeal.
Issues relating to the validity of initiation of proceedings through issuance of notice under Section 56 were raised by way of additional grounds. These were allowed to be urged by this Tribunal. The case finally came before a Full Bench of five members and was decided on 26.6.1988 by a majority view, as under:-
(i) Per Accountant Member-II, Lahore: "The upshot of the foregoing discussion is that the guidance provided to us by the Supreme Court of Pakistan by decisions reported as PLD 1974 SC 310 (Dada Ltd.) PLD 1974 SC 284 (Kohinoor Textile Ltd.) and PLD 1961 SC 375 (Hossain Kassam Dada); the legislative intent as expressed by amendments over the year; and the interpretation as placed by this Tribunal in decision reported as (1984) 49 Tax 34: leads me to see no hazard to hold:
(a) lt is not mandatory to initiate proceedings through issuance of notice under Section 65 of the Ordinance in those cases where returns were not filed for so long that the assessment year relevant to the income year has elapsed.
(b) A notice under Section 56 can be issued at any time for any income year to any person who in the opinion of the 1TO is chargeable to tax but had not furnished a return of income.
(c) lt is not necessary that a notice under Section 56 be issued only during the course of assessm ent year relevant to the income year and not thereafter; and
(d) A notice under Section 56 can be issued only for such assessment years as are covered by the Income Tax Ordinance (i.e. 1979-80 onwards)."
(ii) Per Accountant Member-I, Lahore.
"In the light of the foregoing I would hold that a notice under Section 56 of the Income Tax Ordinance can be issued not only for the income year relevant to the Assessment year in which it is issued but it can be issued for all past income year which the assessee has failed to file any return under the provisions of the law."
(ii) Per Judicial Member-I, Lahore.
"Respectfully following the conclusions arrived at by my learned brothers, the Accountant Members. I agree with the same by adopting the reasons and arguments advanced therein".
3. Both the counsels before us agreed that the questions, as proposed by them do arise out of the "Tribunal's order and also that these may be suitably reframed for soliciting the opinion of the learned Judges of the Lahore High Court for interpretation of the scope of Sections 56 and 65 etc. Of the Income Tax Ordinance.
In the facts and circumstances of the case the following questions of law arise out of the order of the Tribunal which are referred to the Honourable High Court under Section 136 of the Income Tax Ordinance:-
(1) Whether in the case of non-filing of return of income; a notice under Section 56 of the Income Tax Ordinance can be issued only for the assessment year in which it is issued or whether it can be issued for earlier assessm ent year also?
(2) If a notice under Section 56 of the Income Tax Ordinance can be issued for earlier years, upto which past year can the notice be issued?
(3) Whether a notice under Section 65 of the Income Tax Ordinance is not required to be issued in order to initiate proceedings in cases where the assessee has failed to file the return of income for any earlier assessm ent year?
NASIM SIKANDAR, J.-- Section 56 of the Income Tax Ordinance, 1979 ever since its enforcement on 1.7.1979 has been a moot point. The revenue takes it as a carte blanche to require any person to file a return of total income for any number of years in the past while the assessee maintain that the powers of an Assessing Officer to issue notice under this section are restricted to the current assessm ent year. For the previous years, according to them, a notice can be issued only under Section 65 of the Ordinance arid is subject to all the limitations including time limit as contained therein. The provisions of Section 56 of the Income Tax Ordinance, 1979 as they stand today are reproduced as under for facility of reference:-
56. Notice for furnishing return of total income; The Deputy Commissioner may, at any time by notice in writing, required any person who in hie opinion is chargeable to tax or is required to file return of total income under Section 55 for any income year to furnish a return of total income for such year within thirty days from the date of service of such notice or such longer or shorter period as may be specified in such notice or as the Deputy Commissioner may allow: Explanation. For the removal of doubt it is declared that a notice under this section may be issued in respect of any assessm ent year including the current assessment year and any preceding assessm ent year."
2. The words and phrases underlined above were added to the provision by Finance Act, 1997 while the explanation was added only recently i.e. Through the Finance Ordinance No. XXI of 2000, dated 16.9.2000,
3. According to the assessee Section 65 of the Ordinance, 1979 is the only provision under which a return for previous years could be demanded, lt is headed as "additional assessment" and is also reproduced for facility of reference:- 65: Additional Assessment.- (1) if, in any year, reason-
(a) any income chargeable to tax under this Ordinance has escaped assessment; or
(b) the to al income of an assessee has been under assessed, or assessed at too low a rate or has been the subject of excessive relief or refund under this Ordinance; or
(c) the total income of an assessee and the tax payable by him has been assessed or determined under sub-section (1) of Section 69 of Section 59-A or deemed to have been so assessed or determined under sub-section (1) of Section 59 of Section 59-A.
The Deputy Commissioner may, at any time, subject to the provisions of sub-sections (2), (3) and
(4) issue a notice to the assessee containing all or any of the requirements of a notice under Section 56 and may proceed to assess or determine, by an order in writing the total income of the assessee or the tax payable by him as the case may be and all the provisions of this Ordinance shall, so far as may be, apply accordingly: Provided that the tax shall be charged at the rate or rates applicable to the assessment year for which the assessm ent is made.
(2) No proceedings under sub-section (1) shall be initiated unless definite information has come into the possession of the Deputy Commissioner (and) he has obtained the previous approval of the Inspecting Additional Commissioner of Income Tax in writing to do so."
4. Besides learned counsel for the parties in the reference Mr. Siraj Din Khalid, Advocate, for the petitioner and M/s. Muhammad Ilyas Khan and Shafqat Mehmood Chohan, Advocates for the revenue we have also heard the learned counsel for the assessee in various other references which will find mention at the end of the order wherein similar questions with regard to the interpretation of Sections 56 and 65 of the Income Tax Ordinance have been referred to this Court.
5. The learned counsel for the assessee have formulated their points in these words; that provisions of Section 56 should be considered in the chronological order and he read with reference to the provisions of the preceding Sections 55 and 66 succeeding Sections 57 and 65 of the Income Tax Ordinance; that the words "any income year" has also been used in Section 56 which is relevant to the current assessm ent year only and therefore, a different meaning to the same word cannot be given in Section 56; that the provisions of Section 56 cannot mean to cover previous years as no mechanism has been proved therein for the making of assessment, the applicable rate of tax, rebate etc. Whereas in comparable provisions which pertain to previous years like Sections 65, 72 and Section 81 such mechanism has expressly been provided; that Section 56 is not a complete provision and relates to current assessment year only; that comparison of identical provisions of Section 22 of the late Act also point out that the use of word "for any income year" in both Sections 55 and 56 was to replace similar expression of "previous year" as used in the said section, that use of word "for any income year" has a reference only to a part of trie assessment year and not a year earlier to the order of issuance of notice and that sub-section i3) of Section 64 using the same expression "for any income year" has a reference to various periods of an income year for which a person may have filed a return. The other fact of the argument put forth for the assessee is that it is only Section 65 of the Income Tax Ordinance, under which an assessee could be required to file the return in the previous year, In this regard, it is claimed that reference to the provisions of Section 56 in the body of sub-section (2) of Section 65 makes it clear that Section 65 controls the provisions of Section 56. In this connection, the definitions of the words "person" and "assessee" as used in Section 65 are highlighted to contend that in clauses (b)(c) of sub-section (1) of Section 65, the word "assessee" has been used which is conspicuously absent in sub-clause (a) thereof. According to them if the intention of the legislature was to apply clause (a) also to an existing assessee, then similar words of "total income" would have been used as in sub-clauses (b) and (c) while in sub- clause (tt) only the word income has been used; that Section 65 deals with cases of escapement of assessm ent whereas Section 59 deals with those pases in which the income has not yet escaped; that in Section 56 an Income Tax Officer is empowered to issue notice where 'n his opinion the income was ''chargeable to tax" while in subsection (1) of Section 65, the words "escaped assessm ent" and "assessee has been under assessed" or "assessed at too law rates" or "has been subject-matter of excessive relief or refund" have been used. According to the learned counsel for the assessee the legislature has used present indefinite tense in Section 56 Whereas present perfect tense Is used in Section 65. Lastly, it is claimed that the title of Section 65 cannot be made resort to while interpreting its provisions which relate to both partial as well as complete escapement of assessm ent. Total escapement, in their view, means non-filing of return despite there being income chargeable to tax and is covered by sub-clause (a). Other sub-clauses of Section 65 are seen by them as covering both total as well as partial escaper fient in cases where an assessm ent had previously been framed.
6. Learned counsel for the revenue, on the other hand, maintain that a plain reading of provisions of Section 56 implies that it covers n6t only the current but also the previous years for which an Assessing Officer can issue a notice for filing of a return to any person: that Section 65 of the Income Tax Ordinance is pressed into service only when income had escaped while framing of earlier assessm ent and hence the title of the provisions as "additional assessment"; that Section 56 of the Ordinance corresponds to both Section 22 and Section 34 of the repealed Act; that the use of words "any income year" and "at any time" clearly empowers an Assessing Officer to serve a notice to any person for any previous year and if a notice could be issued under Section 56 only in the relevant assessm ent then there was no occasion to make additional provisions for limitation as Section 64(3) specifying time limit for completion of current assessment which had already been looked after by sub-section (1) of Section 64. Also in support of the proposition that a notice under Section 56 can be issued for any income year even beyond 1.7.1979 when the Income Tax Ordinance was enforced a reference is made to the provisions of Repealing and Saving Section 166 of the Ordinance. Lastly it is stated that the addition of an explanation to Section 56 by Finance Act, 2000 clearly demonstrates the intention of the legislature and resolves the controversy which in fact should be no more thereafter its addition to the statute.
7. On hearing the learned counsel for the parties we are of the considered view that the arguments of assessm ent run counter to the basic rules of interpretation of statutes. Th golden rule being that words used in a statue should first be given ordinary and natural meaning, other appropriate meanings could be given only when ordinary meanings do not make sense (re: C/T v.
Administrator Karachi (PLD 1963 SC 137). Both Sections 56 and 65 of the Ordinance, 1979 are placed in Chapter VII which is headed as "Assessment". Being procedural in nature these need to be seen and understood to make the machinery workable, In re: A. And B Food Industries V. C/T (1992 SCM R 663) the Hon'ble Supreme Court laid down the principle that if language of the statute was clear and unambiguous the Court was bound to give it effect without taking into consideration anything extraneous to the same.
8. The first contention that provisions of Section 56 need to be interpreted in the light of the earlier and subsequent provisions can be granted without a difficulty. However, the argument that Section 56 relates only to current assessm ent year is half ; truth. The language employed clearly suggests that the power vested in an Assessing Officer to call for a return is available to him both for the current as well as previous years. The use of words "at any time", "for any income year" and "for such year" cannot be read down to mean "during" and "for the current assessment year", lt is also not correct to suggest that Section 55 relates to current assessment year alone, lt is pot so confined and there is no bar under that section on filing of a return for any previous year or years.
The dates mentioned for filing of returns in sub-section (2) of Section 55 do not in any manner control the provisions of subsection (1) thereof. The use of word "for any income year'' in sub- section (1) again indicates the application of provisions to both current as well as previous years.
There is, therefore, nothing either in the language of the provisions or even the scheme of the Ordinance which can possibly support the claim of the assessee that both Section 55 and Section 56 relate to current year; the former providing for voluntary filing of return and the latter covering cases where voluntarily return for the current year had not been filed.
9. No principle of interpretation of statutes requires that in one section or provision only one kind of exercise of power is permissible. Learned counsel for the assessee think that power of Assessing Officer under Section 56 is exercisable only for the current assessment year and that the interpretation based upon chronological order of sections does not permit a deviation therefrom.
This kind of argument is clearly fallacious, In one section or provision of law an authority can very well be permitted to do a number of acts and as observed earlier no rule of interpretation requires that a separate provision for every power exercisable by public authority should be. Made.
10. Interpreting a statutory provision with preconceived notions is replete with dangerous consequences, lt blurs the vision and paints the picture in the colour of the glass through which it is being seen, In the present case it is the fear of the assessee which has driven then to give far fetched and imaginary interpretation to Sections 56 and 65 of the Ordinance. They feel that if the Assessing Officer gets a carte-blanche to issue notice for previous years without any check or restrictions of the kind contemplated in Section 65, the power will invariably be misused. That fear even if well-based would still not be relevant to read the words completely out of their real context, lt is the will of the legislature which is backed by the strongest possible presumption of welfare and good to general public that has to prevail. Mere cause of difficulty or inconvenience to a particular class of persons has never been a good reason to read down an express provision of law or to mould it into a pattern making it soft and acceptable for all and sundry.
11. Learned counsel for the assessee are unanimous that power to issue notice for previous year is available to an Assessing Officer only under Section 65 of the Income Tax Ordinance, 1979. Lt is maintained that this power is vested in him both in respect of total as well as partial escapement.
They argue that total escapement of income which includes non-filing of return for any previous year is contemplated in sub-clause (a) of sub-section (1) of Section 65 while the other two clauses, particularly sub-clause (b) covers the cases in which an assessment had already been made, In support of the contention that escapement of assessment includes both assessment as well as nonassessm ent Mr. Ibrar Hussain Naqvi, Advocate, learned counsel for one of the assessee heavily relies upon re: Tax Officer-cum-Regional/ Transport Officer Vs. Drug Transport Co. P. Ltd. (1972) 85 ITR 156. Reverence is also made to re: Zubair Siddiqi v. M.H. Sufi and others (PLD 1964 (W.P.) Lahore 453) and re: Chandroji Rao v. C.I.T. M.P. (1970) 77 ITR 743 to contend that the marginal heading to a section cannot be referred for construing the provisions. Obviously it pre-empts the objection from the revenue that title of Section 65 viz. "additional assessment" contemplates cases where an assessm ent had already been framed."
12. 0n the other hand the arguments of the learned counsel for the revenue as noted earlier bear weight and are supported not only from the words of the provision but also over all scheme of the Ordinance. The assessee have attempted to picture a distinction between clauses (a) and (b) of sub-section (1) of Section 65. However, such distinction is not seen anywhere, lt is also not correct that a marginal heading of a section can in no case be called in for help to interpret a provision, In re: Emperor v. Ismail Sayad sahib Mujawar (AIR 1933 Bombay 417) (Full Bench) it was remarked that a marginal note could bd looked at for the purpose of constructing a statute. The word "additional assessm ent" itself refers to the fact that the provision that follows is relatable to those cases only where an assessm ent had already been completed. Sub-clause (a) to sub-section (1) refers to any kind of income which had accrued to an assessee but had not been assessed to tax though it was so chargeable. Both sub-clauses (a) and (b) of Section (1) when read together make it quite clear that while sub-clause (a) refers to any source which though being chargeable to tax was not charged to tax while sub-clause (b) contemplates the cases where the income had been under assessed, or assessed at too low a rate or had been the subject of excessive relief or refund under the Ordinance. Sub-clause (a) therefore, refers to both complete as well as partial escapement of income which ought to have been but was not taxed. The provisions in the later part of Section 65 controlling the power of an Assessing Officer to proceed are meant only to maintain and preserve the sanctity of a completed assessment. Where a person had never put in return and no assessm ent was framed in his respect, he is not entitled to any of the protections given to the completed assessm ents of an assessee. The requirement of availability of definite information also pre-supposes an information earlier provided by the assessee which is to be juxta posed with the subsequent information of the revenue. The word "definite" refers to certainty of the subsequent information as also the contradiction that it contains against the earlier information given or provided by the assessee in the form of a return. With all respect to the views of Hon'ble Supreme Court of India in re: Tax Officer Raipur (supra) we are not persuaded to agree that "escapement" of income covers cases of non-assessee as well. The word "escape" according to 6th Edition of Black's Law Dictionary inter alia means to flee from, to avoid, to get away, as to flee to avoid arrest; the voluntary departure from lawful custody by a prisoner with the intent to evade the due course of justice; it is leaving physical confinement without permission, the departure or deliverance out of custody of a person who was lawfully imprisoned before he was entitled to the liberty by the process of law; voluntarily or negligently allowing any person lawfully in confinement to leave. The use of word "escape" in Section 65(1 )(a) therefore by itself means that after having come in the net of revenue a part or whole of income of an assessee was not taxed. The reason could both be inadvertence on the part of the assessee as well as revenue, lt could equally be as a result of deliberate acts of commission and omissions again on the part of any of the two. Through a return an assessee is required to make a declaration of his total income during the period relevant to the return. Since the computation of total income is a complicated matter both bona fide\ as well as dishonest motives can be behind escapement of income. However, where an assessment was framed by the revenue law provides certain safe-guards to protect the assessee from a constant looming threat of interference by the revenue with a completed assessment. An assessment is a quasi-judicial order which gives not only the conclusions but also the reasons on which these conclusions were reached. Since an assessment like an order is available in black and white both the assessee as well as the revenue can agitate if anything in it had gone to their prejudice. An assessee is provided with a right of appeal or to file a revision on judicial side and where the matter is only a mistake apparent from the face of the record both the assessee as well as the revenue can got the same corrected. However, if from any fact coming to the knowledge of the revenue it transpires that the completed assessments suffered from any of the infirmities pointed out in Section 65 it could move to bring back into the net what had gone out of it by reason of wrong claim both honest as well as dishonest on the part of the assessee. Also a default on the part of the revenue to have applied a wrong rate, excessable relief or refund can be remedied. The "escapement" of income can happen only once a return has been filed and an assessment framed. The filing of a return is like entering into the tax not. Having so entered if any income remains un-taxed due to any reason be it the default of the assessee or the revenue, will result into escapement of income, lt can very well be said that law having required filing of a return on actual of chargeable income by every person, a default on part of such person will also amount to "escapement". However, in our opinion that would more be an evasion of "tax" and not escapement of "income". Obviously the word income and tax are not inter-changeable. A person may attempt to evade tax by making wrong declarations In the return. However, his case cannot be compared with the one who had not filed a return.
13. The revenue has a point to make that the recent addition of explanation to section 156 makes it absolutely clear that an Assessing Officer and issue notice for previous years. The assessee, however, look at the explanation as an insignificant development as far as the answer to the above questions is concerned. Mr. Ashiq Hussain, Advocate, one of the learned counsel for the assessee has gone to the extent of saying that in absence of the legislature the addition of the explanation made at the behest of the revenue needs to be ignored. He relies upon re: Shamim-ur- Rehman v.
Fauji Foundation, Rawalpindi and another (1992 SCM R 1496) to contend that if the legislature was consecrated in one person who did not represent and was not accountable then legislative immunity did not extend to him nor any of the principles as attached to a full blooming and functioning legislature could be extended to him. His argument need not be answered inasmuch as while hearing a reference this Court cannot either strike down a provision of law or declare it ultra vires of the Constitution. Any person desirous of a declaration of the kind can very well approach this Court in Constitutional jurisdiction, In reference under Section 136 of the Income Tax Ordinance, 1979 this Court confines itself to the questions framed by the Tribunal or proposed by the appellant/petitioner and gives an opinion in the perspective of the facts as found by the Tribunal, lt is only the interpretation of law and its application to certain facts what a reference is all about. To enter upon the Constitutionality of a particular provision is not at all required in such matters. The explanation being declaratory in nature can conveniently be taken to be of retrospective operation. There is no ambiguity either in the language or the purpose for which it has been added to the provision. Therefore we will agree with the learned counsel for the revenue that it speaks of the will of legislature that powers of an Assessing Officer extend to require a return both for the current as well as previous years.
14. The contention that Section 56 does not provide for a complete mechanism for framing of assessm ents as similar provisions of Sections 65, 72 and 81 do is also misplaced, lt is correct that in Sections 65, 72 and 81 which admittedly relate to previous years provide for application of "all the provisions of the Ordinance as far m\ay be applicable", lt is also correct that this phrase is absent in the case of Section 56. However, in our view the use of word "a return of total income for such year" is sufficiently indicative of the fact that a return filed will have to be treated and the income determined with reference to law applicable to that particular years, lt will be seen that Sections 65, 72 and 81 relate to peculiar situations and therefore, there was perhaps a need to make an express mention for application of the provisions of the Ordinance. However, for normal situations as in Section 55 of the Ordinance there is no mention of framing of assessment or application of other provisions of the Ordinance. The charging provision of Section 9, when read with Section 56 make it clear that charge of income tax shall be with respect to each assessment year commencing oh or after July 1, 1979 at the rate of, rates specified in the First Schedule. Also it needs to be noted that both Sections 55 and 56 are the first two machinery provisions of Chapter No. VII "assessment" which need to be considered with the rest of them in the Chapter.
15. The strongest point in favour of the revenue appears to be the provision of Section 64(3) of the Ordinance. Section 64 provides for limitation for assessment. Its three sub-sections contemplate three different situations in which an assessment could possibly be made. Sub-section (3) of Section 64 is relevant in our case, lt provides "No assessment under Section 62 or Section 63 shall be made after the expiration of two years from the end of the financial year in which notice under Section 56, sub-section (3) of Section 72 or sub-section (3) of Section 81 as the case may be was served". This subsection also answers the objection of the assessee that Section 56 does not provide for a mechanism for assessment as is done in the other case of Sections 72 and 81. Lt makes it clear that in all the three cases covered by Section 56, sub-section (3) of Section 72 and sub-section (3) of Section 81 assessments shall be made under Section 62 or 63. The opening words of this sub-clause are also relevant which provide that where "for any income year an assessee had failed to furnish return of total income" then assessment in his respect will not be made after the expiration of two years" "from the end of the financial year in which a notice under these provisions were served". The limitation provided for in this sub-section is also different from other situations contemplated in sub-section (1) and sub-section (2) of Section 64. Therefore, it is our considered view that mere lack of reference to application of other provisions of the Ordinance in Section 56 does not support the interpretation of the assessee.
16. Mian Ashiq Hussain, Advocate, one of the learned counsel for the assessee has also argued that un-restricted power to an Assessing Officer to issue notice for previous years will amount to allow him a premium for his default. According to him it is the duty of the Department to trace out all cases of income chargeable to tax and its failure cannot be condoned by allowing powers to hound old and broken assessee who may have even forgotten if they were ever in business. We are not impressed by the argument. To pay a tax after it has become due is certainly a duty of every citizen but to seek the tax-payer is not a "duty" as such as we understand the term in Jurisprudence. Such an interpretation will produce anomalous results that while a dishonest assessee will be protected while an honest assessee will remain exposed to harassment for quite some time due to re-opening provisions.
17. Lastly coming to the issue if notices under Section 56 of the Income Tax Ordinance could be issued for a period prior to the enforcement of Income Tax Ordinance, 1979 we find that the revenue does not have any case to argue. Section 166 providing for repeal and savings for certain kind of pending proceedings does not contemplate issuance of notice under Section 65 of the Income Tax Ordinance for a period dating back today when the Act was in force. The two situations contemplated under sub-clause (c) of subsection (2) of Section 166 do not cover a situation where a person had not filed a return before the enforcement of the Ordinance. The first situation relates to cases where a notice under Section 34 of the repealed Act had already been issued before the enforcement of the Ordinance and second, where the provisions of Section 65 of the Ordinance needed to be invoked on the grounds stated therein. Since no saving clause provides for issuance of a notice under Section 56 in respect of any year prior to the enforcement of the Ordinance we will hold that a notice under Section 56 cannot be issued for any assessment year prior to the date of enforcement of the Ordinance i.e. 1.7.1979.
18. Accordingly it is held that a notice u/S. 65 of the Ordinance can be issued for the current as well as for any previous assessm ent year after the enforcement of the Income Tax Ordinance, 1979. Also that, in cases where an assessee had failed to file return of his total income in the current as well as in the previous years the issuance of notice under Section 65 of the Income Tax Ordinance, 1979 is not required. Further that the provisions of Section 65 of the Ordinance are applicable only in respect of assessm ents already framed or deemed to have been framed.
19. Reference answered in the above terms.
20. This judgment will also dispose of C.T.R. Nos. 1/91, 4/91, 5/96, 13/95, 121/93, 4/95, 65/93, 46/93, 51/92, 50/91, 95/91, 380/91, 182/91, 363/91, 44/92, 115/91, 58/99, 116/91, 378/91, 379/91, 381/91, 382/91, 383/91, 384/91, 310/91, 308/91, 100/91, 97/91, 63/97, 181/91, 122/91, 17/91, 18/91, 43/91, 51/91, 70/91, 96/91, 320/91, 311/91, 129/90, ITA Nos. 162/2000, 163/2000, 164/2000, 545/2000, 546/2000, 547 to 551 of 2000, 22/94, CTR Nos. 357/91, 117/91 and 134/98.