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Business Recorder
3 days ago
- Politics
- Business Recorder
Section 122 (5A) ITO: Power granted to IR commissioners is not without boundaries: ATIR
ISLAMABAD: Appellate Tribunal Inland Revenue (ATIR) has held that the powers granted to Commissioners Inland Revenue to amend assessment orders under Section 122(5A) of the Income Tax Ordinance, 2001 are not without boundaries. The ATIR emphasised that the scope of investigation and inquiry under this provision is not open-ended, and must operate within clearly defined restrictions and limitations. In a strongly worded observation, the ATIR remarked that 'justice is a concept of moral rightness based on ethics and rationality,' asserting that unchecked investigative authority undermines both the legal process and individual freedoms. ATIR further stated that the investigative proceedings under the cited provision 'suffer not only from the vice of excessive delegation of legislative authority but also amount to a patent violation of fundamental rights and constitutional guarantees.' The ruling criticised the absence of adequate safeguards and procedural clarity, arguing that this lack opens the door to arbitrary use of power. Tax lawyer Waheed Shahzad Butt says this judgment could set a precedent for future challenges to administrative overreach and highlight the growing need for a balance between state authority and individual constitutional protections. The decision is being welcomed as a reaffirmation of the principles of due process and rule of law. ATIR order stated: 'under Section 122(5A) the scope of investigation and inquiry is not open ended without any restrictions and limitations. Matter of enquiries and fishing and roving inquiries is to be seen in the context of two mandatory prescribed conditions referred in the provision of law. Enquiries cannot be conducted without the presence of twin criteria of 'erroneous & prejudicial to interest of revenue' otherwise there would be no difference between (Regular Audit) Section 177 & (Amendment of assessment) Section 122(5A). Verification of any factual controversy is obviously out of purview of section 122(5A) and requires conduct of audit (if any) under section 177. Creation of tax demand under the umbrella of Section 122(5A) is a blunt violation. There is no concept of 'unfettered discretion' in the fiscal laws and arbitrary exercise of discretionary powers has to be struck down. Justice is a concept of moral rightness based on ethics and rationality, impugned order merits, cancellation, ATIR order added. Copyright Business Recorder, 2025
Business Recorder
20-05-2025
- Business
- Business Recorder
Affected party (taxpayer): Assessment order communication mandatory: ATIR
ISLAMABAD: The Appellate Tribunal Inland Revenue (ATIR) has ruled that the communication of the assessment order to the affected party (taxpayer) is essential for the order to attain legal efficacy within the statutory timeframe. Through an order issued by the ATIR, it stated that an order passed internally on a file, but not communicated to the affected party (taxpayer) within the legally prescribed time limit, cannot be deemed to have been validly passed within that period. Prior to granting any extension in time for passing of amended order under Section 122(5A) of the Income Tax Ordinance, 2001, it is the bounden duty of the Commissioner to act impartially, providing a fair opportunity of hearing to all rival parties. It is reliably learnt that a landmark order has been passed by the ATIR on arguments made by tax lawyer Waheed Shahzad Butt wherein the ATIR held that communication of the order to the affected party is essential for the order to attain legal efficacy within the statutory timeframe. Merely signing or noting it on a file without informing the concerned party fails to meet the legal standard. Shahzad Butt Advocate, who represented the appellant, hailed the decision as a landmark in administrative and tax jurisprudence. He stated, 'This ruling is a critical reaffirmation that authorities must act transparently, within the bounds of the law, and with full regard to the rights of the parties involved. It sets a powerful precedent for future adjudication where procedural fairness is at stake.' ATIR order states 'Notice was issued on 08.01.2024 and the amended order has been passed on 08.11.2024. Resultantly, it has been proved that the order has been passed after a lapse of 305 days from the issuance of show cause notice, while as per statement of the author extension in time was sought from the concerned Commissioner after lapse of 239 days on 03.09.2024. A total period of 240 days has been provided by the legislature to dispose of the show cause notice (SCN)in the shape of assessment order. It is now settled principle of law that prior to granting extension, it is the bounden duty of the CIR to provide an opportunity of hearing to the rival parties and act like a neutral unbiased umpire. However, in the instant case, admittedly no such opportunity has been granted to the appellant, which renders the extension order illegal & void ab-initio. The impugned amended order is thus time barred, ATIR order added. Copyright Business Recorder, 2025
Business Recorder
01-05-2025
- Business
- Business Recorder
Case regarding violations of Rule 150ZEO: Sealing of outlet will harm business entity and economy: ATIR bench
ISLAMABAD: A division bench of the Appellate Tribunal Inland Revenue (ATIR), Islamabad bench, in a landmark judgment, held that the sealing of retail outlet of a taxpayer will cause undue harm to both the business entity and the broader economy, undermining the objective of efficient tax collection in the context of doctrine of proportionality. In a detailed judgment, the ATIR has also discussed the discretionary authority of the court to permit an appellant to withdraw an appeal and the procedural requirements and legal framework governing the sealing of a registered person's business premises for violations of Rule 150ZEO of the Sales Tax Rules, 2006. The judgment has once again been authored by M M Akram, the senior-most judicial member of the ATIR who has earlier authored dozens of judgments on new legal issues. A Karachi-based tax consultant, Basharat Qureshi, when contacted, added that such judicial members of the ATIR selected by the FPSC through a transparent selection process, instead of lateral entry, are a blessing for the taxpayers against the high-handedness of the department and ought to be elevated to the high court to head tax benches. The facts of the case were that the Department received a complaint alleging that the taxpayer issued invoices without QR codes or non-POS invoices worth Rs10359. Based upon these allegations, the CCIR decided to take action to seal of retail outlet. The DCIR prepared a draft sealing order and forwarded the same to the Additional Commissioner and ultimately the Chief Commissioner, LTO, Islamabad, passed the impugned order. The taxpayer filed a direct appeal to ATIR. During the third hearing of appeal, the taxpayer filed an application to withdraw the appeal. The application was not entertained as important legal issues were involved. The ATIR framed two legal questions as under: Q1. Did the impugn decision dated March 07, 2025 to seal the taxpayer's business premises, without issuing a show cause notice or verifying the alleged invoices, contravenes the principle of natural justice and procedural fairness The ATIR in respect of first question held that given the procedural flaws outlined above, it is clear that the action taken by the tax authorities in sealing the business premises violated the principles of natural justice and procedural fairness. The failure to issue a show cause notice and allow the appellant an opportunity to respond constitutes a serious denial of their right to be heard. Additionally, the lack of invoice verification, the unauthorised initiation of the sealing process by an officer lacking the necessary authority, and jurisdictional errors further undermine the validity of the action. These procedural breaches, which are essential to ensuring fairness and justice, render the sealing order unlawful. Q.2 Did the Commissioner's decision to seal the taxpayer's business premises and impose a penalty appropriately reflect the principle of proportionality in relation to the alleged tax evasion? The ATIR observed that the sealing of the business constitutes a highly coercive and severe measure. Such an action may not, in every circumstance, be the most effective means of ensuring compliance with tax obligations. Therefore, it is imperative to consider whether there exist any alternate measures within the statutory framework that are less disruptive yet capable of achieving the desired compliance. In this regard, section 40B of the Sales Tax Act, 1990 provides an alternative mechanism for ensuring tax compliance. Copyright Business Recorder, 2025
