DECISION /FINDINGS ' The complaint relates to the assessment years 2000-2001 and 2001-2002 and alleges excessive assessm ent in disregard of the fact that the shop was dislodged by the Military Authorities for reasons of encroachments.
2. The respondent's reply, dated 17-5-2002 conveys that in view of the constant decline in declared income, it was thought necessary to ascertain factual position of business for which the Commissioner proposed discreet inquiry under his own supervision where after, if necessary, suo motu power of review would be exercised to rectify the situation.
3. , The complainant who appeared personally explained that igniting the declared income, filed at Rs,15,000 for 2000-2001 and a mere Rs,6,000 for 2001-2001, the Assessmg Officer completed assessm ents determining income at Rs,70,000 for 2000-2001 and Rs,75,593 for 2001-2002. It was explained that the Military Authorities removed certain encroachments and, resultantly, the complainant's business premises .Was evacuated. The new place, now allotted, is not favourably located and, therefore, the business is constantly on the decline to which no regard was shown by the Assessing Officer. To support his stand the complainant submitted copies of various representations filed by him to the Administrator of the Municipality and to the Nazim of the Tehsil Council in which the other shop owners of the new area wee joint petitioners.
4. The Representative of the Revenue on his turn admitted that the Commissioner desired to vacate the impugned assessm ents, as conveyed in respondent's reply, but found himself helpless because there is no corresponding provisions for section 138 of the repealed Ordinance in the new Income Tax Ordinance, 2001 and, in fact, power of revision was withdrawn by omission of section 135 which was initially enacted in the new Ordinance. The D.R. Supported his arguments by bringing on record letter, dated 3-8-2002 addressed by the R-CIT, Central Region, Multan to Member (Direct Taxes), C.B.R., Mr. Vakeel Ahmad, seeking clarification on this issue.
5. The investigation shows that the Department from the. Very beginning, concedes that "maladministration" has been committed and is willing to rectify of the wrong. It is surprising that the concerned officers have not given thought that action, as could be taken under section 138 of the repealed Ordinance or section 135 .Of the new Ordinance is possible under subsection (5) of section 122 of the Income Tax Ordinance, 2001 which reads as under;--- Section 122. Amendment of assessm ent.----
(5) An assessm ent order shall only be amended under subsection (1) and an amended assessm ent shall only be amended under subsection (4) where the Commissioner---
(a) is of the view that this Ordinance has been incorrectly applied in making the assessment (including the misclassification of an amount under a head of income, incorrect payment of tax with the return of income, an incorrect claim for tax relief or rebate, an incorrect claim for exemption of any amount an incorrect claim for a refund); or
(b) has definite information acquired from an audit or otherwise that the assessment is incorrect.
In fact the above section 122 confers wider powers than were available in the repealed Ordinance.
Now an assessm ent order where (a) the Ordinance is incorrectly applied, or (b) definite information acquired from an audit or otherwise that the assessment is incorrect, can be amended by the Commissioner. Since in the present case the Department itself accepts that the assessment is incorrect, there should be no difficulty in invoking the powers conferred by subsection (5) of section 122 to remedy the situation. It is, therefore, recommended that:--
(i) Commissioner to conduct an inquiry as already proposed in the respondent's reply.
(ii) Pass consequential order under section 122 of the Income Tax Ordinance, 2001.
6. Compliance report be submitted within 30 days of the receipt of this Order.