High Court Division (Special Original Jurisdiction)
Zinat Ara J
SH Md Nurul Huda
Jaigirdar J
Shahidul Islam (Md) …
……… Petitioner
vs
Assistant Commissioner of Taxes, and others…….Respondents
Judgment
April 7th, 2014
Income Tax Ordinance (XXXVI of 1984)
Sections 83A(5) and 93
There was scope for re-opening of a case by the DCT/the ACT under section 93 of the Ordinance for the relevant assessment year. However, re-opening must be on definite information regarding concealment. The ACT ought to have given an information to the assessee about the concealment of income as required under section 83A(5) of the Ordinance so as to enable the assessee to controvert such allegations of concealment ……(7)
Mustafa Kamal Mansoor-For the Petitioner.
Mahfuza Begum, AAG-For the Respondents
Judgment
In this application under article 102 of the Constitution, the assessee-petitioner has challenged the legality of the notice dated 6-6-2013 issued by the Assistant Commissioner of Taxes, Circle-26, Taxes Zone-2, Chittagong under section 93 of the Income Tax Ordinance, 1984 (shortly, the Ordinance) with reference to TIN No. 349-100-2919 for the assessment year 2006-2007 relating to re-opening of the self- assessment case of the assessee-petitioner submitted under section 83A(1) of the Ordinance.
2. It has been stated that the assessee-petitioner submitted his income tax return under section 83A of the Ordinance under self-assessment scheme for the assessment year 2006-2007 before the Assistant Commissioner of Taxes, Circle-II (now Circle-26), Chittagong (shortly, the ACT) and the assessment was completed accordingly. Subsequently, the ACT issued notice under section 93 of the Ordinance for reopening of the case. Hence, this application.
3. Mr. Mustafa Kamal Mansoor, the learned Advocate for the assessee-petitioner, submits that there is no scope to re-open the case under section 93 of the Ordinance. He further submits that from the letter issued by the assessee (Annexure-D to the application), it appears that the information relating to concealment of income was not supplied to the assessee and so, a rule nisi may be issued in the matter.
4. In reply, Ms Mahfuza Begum, the learned Assistant Attorney-General, takes us through the provisions of section 83A(5) of the Ordinance and submits that sub-section (5) of section 83A of the Ordinance was inserted by the Finance Act, 2003 and therefore, in the assessment year 2006-2007 there was legal scope for re-opening of the case under section. 93 of the Ordinance by the taxes authority.
5. We have examined the application and the materials on record and considered the provisions of section 83A of the Ordinance.
6. It transpires that by the Finance Act, 2003, sub-section (5) was added to section 83A of the Ordinance which reads as follows:-
“Notwithstanding anything contained in this section the Deputy Commissioner of Taxes may initiate proceedings under section 93 if definite information regarding concealment of income comes to his possession.”
7. Therefore, there was scope for re-opening of a case by the DCT / the ACT under section 93 of the Ordinance for the relevant assessment year. However, re-opening must be on definite information regarding concealment. Therefore, the ACT ought to have given an information to the assessee about the concealment of income as required under section 83A(5) of the Ordinance so as to enable the assessee to controvert such allegations of concealment.
8. In view of the above, we are not inclined to issue any Rule in the matter.
9. However, the ACT (Respondent No.1) is directed to give information to the assessee-petitioner about his concealment of income within one month from the date of receipt of this order as prayed for by the assessee through annexure-D to the writ petition.
10. With the above observations and directions, the application is disposed of.
No cost.
Communicate this order to respondent No. 1 at once.
