DR. GHOUS MUHAMMAD, J. -- These are two income tax appeals relating to the assessment years 1986-87 and 1987-88 in relation to the appellant, a private limited Company, engaged in the manufacture of wiring harnesses-The appellant for the two years had find its returns for total income and thereafter received notices u/S. 61 of the Income Tax Ordinance, 1979 (hereinafter; "the 1979 Ordinance"), in response whereof the authorized representative of the appellant attended.
2. The Assessing Officer for the assessment year 1986-87 completed the assessment on 23.4.1988, on which date the order sheet entry in the record of the Assessing Officer reads as follows:- "23.4.1988. Mr. Sohail, ITP, attends. He states that all the details have been find. Case examined and discussed with the A.R. All the purchases are unverifiable. The rate of Gross Profit is too low as compared to the rate of G.P. Declared in the preceding years. The expenses in P&L A/c. Are not proportionate to the G.P. Hence return version is rejected. The loss declared is ignored and assessm ent finalized at nil income as per history of the case."
The assessm ent order for the year 1986-87 corresponds to the above order sheet entry, which has seemingly been passed u/S. 63 of the 1979 Ordinance which deals with ex parte or best judgment assessm ents. Whatever is the legal consequence of mentioning Section 63 shall be discussed hereafter, however, for the time being it is pertinent to point out that the reasons which prevailed with the Assessing Officer in rejecting the trading results for the year 1 986-87 are as follows:-
(a) expenses claimed are highly disproportionate to the quantum of sales and the Gross Profit earned;
(b) expenses towards salaries are very high which confirms that the business activities of the assessee were on a large scale;
(c) purchase and sales are totally unverifiable;
(d) rejection of accounts is based upon past history of the case.
3. For the assessm ent year 1987-88, the assessment proceedings were completed on 2.6.1998, and on such date the order sheet entry in the assessment record reads as follows:- "2.6.1.998. Mr. Sohail, ITP, attends on behalf of assessee.
Accounts books have not been produced. He requests for time four opportunities have been given.
No further adjournment is allowed. Case is reserved for order." (underlined for emphasis).
4. For the assessm ent year 1987-88 it seems that the Assessing Officer had directed the appellant to produce books of account on 27.4.1988, however, on such date no one attended. The case was.
Again find on 2.6.1988 after service of notice u/S. 61 of the 1979 Ordinance. On this date the learned authorized representative of the appellant requested for adjournment, however, none was given and the assessm ent was finalized u/S. 63 of the 1979 Ordinance after rejecting the declared version and finalizing the. Return at nil income, while ignoring the loss declared by the appellant, In doing so the reasons that prevailed before the , Assessing Officer were as follows:-
(a) no party-wise details of purchases and sales were find by the appellant;
(b) no books of account were produced by the appellant.
Against the two assessm ent orders the appellant preferred appeals before the Commissioner of Income Tax (Appeals), the first appellate authority u/S. 129 of the 1979 Ordinance, who was pleased to allow the .Appeals, through a common order for both the years dated 1.4.1989, and directed acceptance of the trading results, while maintaining certain additions in the Profit and Loss Account on grounds that they were personal nature and not of business use.
Aggrieved against the order of the Commissioner of Income Tax (Appeals), the department preferred second appeals to the Income Tax Appellate Tribunal (hereafter; "the ITAT") u/S. 134 of the 1979 Ordinance, challenging the findings of the first appellate authority for the two years whereby trading results were directed to be accepted. The ITAT allowed the two departmental appeals through a common order dated 15.5.1987, while vacating the order of the Commissioner of Income Tax (Appeals) and restoring the orders of assessment of the Assessing Officer, for the two years.
6. Aggrieved against the order passed by the ITAT, the appellant (the assessee) has preferred these two appeals.
7. Mr. Abdul Rahim Bhatti, the learned counsel for the appellant has assailed the order of the ITAT on the ground that while restoring the original assessment orders, relevant material and facts which weighed with the first appellate authority were totally ignored. Also it has been contended by the learned counsel for the appellant that once the assessee had caused appearance before the Assessing Officer there was no justification to have framed the assessment u/S. 63 of the 1979 Ordinance, which pertains to ex parte assessments; as such the two assessments are a nullity in law. Furthermore, the learned counsel for the appellant has argued that in rejecting the trading results no specific defects in the books of account or otherwise have been pointed out as the so- called objections of the Assessing Officer touching upon non-verifiability of sales and purchase, disproportionate nature of expenses vis-a-vis gross profit and past history cannot be considered as proper grounds for rejection of the trading results.
8. On the other hand, Mr. Sheikh Haider, the learned counsel for the Department of Income Tax, has vehemently argued that the appellant in the present case had even failed to produce the books of account. Mr. Sheikh Haider further stated that Commissioner of Income Tax (Appeals) in accepting the trading results has given no reasons towards his finding for acceptance of the trading results, which finding is non-speaking and opposed to the dictates of law and justice. The learned counsel for the respondents has further stated that the order of the ITAT is fully justified and no ground has been made out by the appellant to warrant any judicial interference in these appeals.
9. We have heard the arguments of the learned counsel for both sides and perused the record and looked into the law on the subject.
10. The facts of the two years are not completely identical. For the assessment year 1986-87 there is nothing on record to substantiate Mr. Sheikh Haider's contention that no books of account were produced before the Assessing Officer. However, for the assessment year 1987-88 it is clear from the record that the Assessing Officer had issued the requisition for production of books of account which remained un-complied with. We would take up the appeal for the assessment year 1987-88 first. The 1979 Ordinance provides for filling of return u/S. 55, and thereafter for further process and scrutiny thereof notices are to be issued u/S. 61. After the return of total income is subjected to scrutiny an assessm ent order is passed u/S. 62. In case the assessee does not comply with the lawful requisitions of the Assessing Officer or does not attend the hearing despite service of notice, the law makers in their wisdom have provided for a method by way of a "best judgment assessm ent". Under the erstwhile Income Tax Act, 1922 the Assessing Officer could frame a best judgment assessm ent u/S. 23(4) thereof and under the prevailing 1979 Ordinance this has become possible through Section 63 of the latter.
11. In this respect it would be pertinent to look into these provisions which are reproduced as follows:-
(a) Section 23(4) of the Income Tax Act, 1922 provided as follows:- "(4) If . Any person fails to make the return either under sub-section (.1) of Section 22 or in compliance with a notice given under sub-section ($) of the section and has not made a return or a revised fretum under sub-section (3) of the same section or fails to comply with all the terms of a notice issued under sub-section (4) or subr section (4-A) of a notice issued under sub-section (2) of this section, the Income Tax Officer shall make the assessment to the best of his judgment and determine the sum payable by the assessee on the basis of such assessment and, in the case of a firm, may refuse to register it or may cancel its registration if it is already registered: Provided that where a person has failed to make a return under sub-section (1) of Section 22, no assessm ent under this sub-section shall be made unless he has already been assessed to tax under this Act for at least one assessment year prior to the assessment year in respect of which he has failed to make the return: Provided further that the registration of a firm shall not be cancelled until fourteen days have elapsed from the issue of a notice by the Income Tax Officer to the firm intimating his intention to cancel its registration."
(b) Section 63 of the 1979 Ordinance provides as follows:- "63. Best judgment assessm ent. -- Where any person-(a) fails to furnish a return of total income required to be furnished by him under Section 56, sub-section (3) of Section 72 or sub-section (3) of Section 81; or (b) fails to comply with any of the terms of a notice issued under Section 58 or 61, the [Deputy Commissioner] may, by an order in -writing, assess the total income of the assessee to the best of his judgment and determine the amount of tax payable by him."
The above two provisions are analogous. Section 63 of the 1979 Ordinance clearly provides, inter alia, that in case the requisitions of the Assessing. Officer u/S. 61 of the 1979 Ordinance remain un- complied with, the latter, can proceed to them an assessment under Section 63 by way of a best judgment assessm ent, In the present case, for the assessment year 1987- 88, admittedly the appellant failed to produce the books of account which is to be perceived as a requisition u/S. 61 of the 1979 Ordinance, It is not the case of the appellant and no ground has been taken that no reasonable opportunity was given by the Assessing Officer to the appellant to produce the books of account, It is thus, the case where despite providing of sufficient opportunity the books of account were not produced by the appellant. Accordingly it is a fit case where the Assessing Officer Could have proceeded with a best judgment assessment under Section 63 of the 1979 Ordinance. Accordingly, for the assessment year 1987-88 the appellant's contention that the Assessing Officer was not. Justified to frame a best judgment assessment u/S. 63 of the 1979 Ordinance carries no force, but. This is not the end of the matter. The best judgment assessment, though justified, must not have been dishonest, vindictive or capricious and should have reflected reasoning and basis of honest guess work. The best judgment assessment thus should not be punishment which is meted out to the assessee and must reflect the Assessing Officer's fair and proper estimate after taking into consideration of local knowledge, repute of the assessee's circumstances, his own knowledge of previous returns of the assessee and other parallel cases, which are proved to be parallel. In this respect we are fortified by the judgment of the Hon'ble Supreme Court in M/s. Pak Co. Ltd., Sargodha v. CIT, Rawalpindi Zone (.1985 SCM R 786) wherein Mohammad Afzal Zuliah, J.. As he then was, writing for the Court had analysed Section 23(4) of the Income Tax Act, 1922, providing for a best judgment assessment 'and analogous to the prevailing Section 63 oi the 1979 Ordinance, while observing as follows:- "The. Other question relates -to the interpretation of Section 23(4) regarding the action to be taken by. The Income Tax Officer on such a finding. With respect, we do not agree with the learned Judges of the High Court that all the aspects of the consequential action taken 'under Section 23(4) are to follow as punishment Tim assessment by, the Income Tax Officer on best, judgment", has in any case to be fair as it should normally be. The selection -of the word "judgment" and that too "best" is not without significance. The Income Tax Officer has to make a fair assessment under the said provision, through his "best judgment", simply' because the relevant material has not been produced by the assessee. But he has nd power to make the assessment as a penalty, at a higher amount than what, in his best judgment, as- a fair act it should be. Therefore this part of his power is an ordinary power of assessm ent though in a somewhat different context and manner, It is on account of this underlying rationale that the Income Tax Officer has been bound down by the provision itself to make the assessment in accordance with his "best" judgment. He has np discretion in this behalf.
Before passing on to the next question it needs to be clarified that it is not every failure to produce the demanded material that will entail the above consequence. Only wilful failure is meant. For example cases of damage or loss by theft or otherwise as held in the case of Waris Silk Weaving & Knitting Mills would not be covered by this provision. .It also needs to be emphasized that assessment on "best judgment under this provision was never intended to be a retaliatory, vindictive, capricious or even arbitrary. There is mass of case-law on this point, It will however suffice to reproduce here its summing up by Y.V. Chitaley in the AIR Manual. 2nd Edition, Vol. VIII Point No. 6(1) under the head "Best judgment" at page 407 as follows:- "6. Best judgment assessm ent. - Sub-section (4). - (1) Under S. 23(4), the officer is to make an assessm ent to the best of his judgment against a person who is in default as regards supplying information. He must not act dishonestly, or vindictively^ or capriciously because he must exercise judgement in the matter. He must make what he honestly believes to be a fair estimate of the proper figure of assessm ent and for this purpose, he must be able to take into consideration local knowledge and mute in regard to the assessee's circumstances ^nd his own knowledge of previous returns, by and assessm ents of the assessee and all other matters which he thinks will assist him in arriving at a fair and proper estimate; and though there must necessarily be guess work in the matter, it must be honest guess work.
It is further added that the so-called "guess work" as already explained cannot .Be otherwise than that of a 'prudent man' and that too on the basis in cases where "evidence" is not at all available, of necessary probabilities. The cases cited by the authors in this behalf are: "1937 PC 133 (AIR V 24): ILR Nag. 191: 64 lnd. App. 102: 31 Sindh LR 284: 1957 Pat. 467 (AIR V 44 C 140): 36 Pat. 886: (1955 Trav. Co.
67(67! US) AIR V 42 C 26): ILR" Trv. Co. 1022: 1952 Pat, 235 (AIR V 39k 31 Pat. 246 (Case under S. 10(4), Bihar Sales Tax Act, 6 of 1944, which is analogous to S. 23(4), income Tax Act - AIR 1937 PC 133, Foil.): 1926 Lah. 233 (AIR V 20): 9 Luck 85. (An Income Tax Officer does not possess absolute arbitrary authority to assess at any figure he likes and although he is not bound by strict judicial principles, he should be guided by the rules of justice, equity and good conscience). (IR 1934 Nag. 183) (AIR V 21): 31 Nag. LR 32: 1938 Lah. 867 (AIR V 25): ILR 1939 Lah. 47: IR 1940 Nag. 83 (AIR V 27): ILR 1941 Nag.
360."
12. It is true that law does not caste any obligation on the assessee to maintain accounts and no adverse inference can be drawn for failing to maintain such accounts. However, where accounts are maintained and the same are not produced or are suppressed, adverse inference can be drawn (see Lajwanti Sial and others v. C/T, (1956) "30 ITR 228). In the present case existence of books of account were not denied by the appellant, however, these were not produced, thus the Assessing Officer was justified to proceed by way of a best judgment assessment. However., such assessm ent should not have been capricious and without any basis. There is no reflection of any honest guess work m the assessm ent order to substantiate that the Assessing Officer name relied upon the local knowledge repute of the assessee s circumstances or his own knowledge of the assessee's previous returns or that of other parallel cases, for the assessment year 1987-88 the Assessing Officer has not even relied upon the past history of the appellant (unlike the assessment year 1986-87) as he observed the following in the second para of his scant assessment order:- "No parawise details of purchase and sales have been find, In the absence of books of accounts the return version cannot be accepted. The loss declared is ignored and assessment is finalized at nil income."
13. The estimate given by the -Assessing Officer thus violates the angle of law enunciated by the Hon'ble Supreme Court in Pak Sargodha Co. (cited supra), It is correct that the findings of the Commissioner of Income Tax (Appeals) are not speaking, since after citing a number of judgments relied upon by the appellant, he has simply stated that the ratio of these decisions support the Case of the appellant, while allowing the appeals, without any discussion and application of mind.
However, unfortunately the ITAT has committed the same error. The order of ITAT is also not speaking as the ITAT has only confronted the contention of the Departmental Representative concerning adverse past history of the appellant to its counsel and when the appellant's counsel stated that the nature of business in the early^ years was different. It was observed by the ITAT that such plea was not raised earlier and could not be allowed in second appeal. The ITAT failed to appreciate that for the assessm ent year 1987-&8 the Assessing Officer did not rely upon the past history as observed by us at the end of para 13 above. Contrary to the yardstick of the ITAT, it allowed the Departmental Representative to raise a plea which was not taken up by the Assessing Officer himself i.e. The plea of past history for the assessment year 1987-88. The ITAT has thus materially erred to appreciate that the process of estimation by the Assessing Officer was totally an ad hoc exercise floating in the air. The assessment order for the assessment year 1987-88 and the order of the ITAT thus cannot be sustained.
14. Now we come to the assessm ent year 1986-87. For this year the books of account were produced by-the appellant. The four reasons for rejecting the trading results have been spelt out in para 2 above. The first reason pertains to the expenses claimed in the Profit and Loss Account being highly disproportionate' to the quantum of sales and the Gross Profit earned. This reason is completely inappropriate for the rejection of trading results. The trading results are the sales i.e. Turnover and the Gross Profit/Gross Profit rate, which are to be found in the Trading Account. The profit and loss expenses find entry in the Profit and Loss Account.' The entries in the Profit and Loss Account cannot be a yardstick for the entries in the trading Account, In other words, the profit and loss expenses, are not a standard for measuring trading results, In case the Assessing Officer finds the profit and loss expenses to be excessive, disproportionate, unvouched or unreasonable he can disallow the same u/S. 23 of the 1979 Ordinance, but of course after proper reasoning and after pointing out specific items which warrant disallowance. Accordingly-, the first objection with regard to the rejection of the trading results is improper. The second reason reflected for rejecting the trading results is that the expenses towards salaries are very high confirming the business activity on a large scale. Once again this ground is not proper as salaries find mention in the Profit and Loss Account and not in the Trading Account, In case any item of salary is not found to be in accordance with law, the Assessing Officer can disallow the same u/S. 23. This ground accordingly also does not warrant rejection of the trading results. The third ground which influenced the Assessing Officer to. Reject the trading version was with regard to that unverifiability of sales and purchases. This once again is an improper ground since it is not settled law unverifiability of sales and purchases cannot be a ground for rejection of trading results (see Pimpa (Pvt) Ltd. v, CIT, 1994 PTD 123). The last ground expressed by the Assessing Officer for rejecting the trading results is with regard to the adverse past history of the appellant. Once again this is not a correct ground to reject the accounts since it is also settled law that no res judicata is known to income tax proceedings as every year is an independent year (see CIT v. Captain Chemical, 1991 PTD 678). For the assessm ent year 1986-87 books of account were produced and no specific defects have been found in the books of account, in this respect we have been able to lay our hands on the decision of the full bench of Hon'ble Supreme Court in CIT v. Krudd Sons Ltd. (1993). 68 Taxation 41 (SC of Pak), wherein Saleem Akhtar, J., as he then was, writing for Court has observed that the; accounts cannot be rejected till such time specific defects are found-in the accounts from where it can be seen that correct profits cannot be determined therefrom. No such defect was pointed out by the Assessing Officer or the ITAT for the assessm ent year 1986-87. The assessment order for the year 1986-87 is not an ex parte or best judgment assessment u/S. 63 as unlike the assessment for the year 1987-88 it has not been framed on account of default of -the appellant, It makes no difference that the assessm ent order for the year . 1986-87 mentions Section 63 in. Its recital since it is settled law that mere mention of a wrong section number is inconsequential (see Safia Bibi v. Aisha Bibi, PLJ 1982 SC 443 and Baigan v. Abdu! Hakeem, PLJ 1982 SC 701). Thus the assessment order for the year 1986- 87 has to be construed as an order u/S. 62 of the 1979 Ordinance.
15. It is further observed that the . Orders of the Commissioner of Income Tax (Appeals) and the ITAT suffer from the same defects as have been pointed out in para 14 above pertaining to the assessm ent year 1987-88. However, due to the reasons explained in para 15. Above the.
Assessm ent order for the assessm ent year 1986-87 and the order of the ITAT cannot be sustained.
1 6. Also for both the years no basis has been reflected tor arriving at the estimates, thus militating against the rule laid down in Star Rolling Mills v. CIT (1974) 30 Taxation 27 (-HC, Karachi).
17. The appeals are accordingly allowed and the trading results of the appellant are directed to be accepted, In doing so we were considering the prospects of a remand, however, we feel that the same would not be .Proper, since in framing the assessment orders it is the Assessing Officer who has to blame himself for the wrongful exercise of power. A remand order would have meant that the assessee would have been subjected to another round of cumbersome proceedings which is deprecated in law and such order should not be passed in a routine manner to allow a party to improve his case or to fill in the lacuna (see Muhammad Sadiq v. ITO, 1988 PTD 1014 and Chairman WAPDA v. Gulbat Khan. 1996 SCM R 230).
18. There shall, however, be no order as to costs.