ADVOCATE ALI AZAM Vs. COMMISSIONER OF TAXES

JUDGEMENT

(1.) This reference application at the instance of the Assessee appellant arises out of assessment made by the Assistant Commissioner of Taxes, Noakhali, Circle-1, Noakhali, for the assessment year 1987-88 vide his order dated nil under section 83(2) of the Income Tax Ordinance, 1984 on a total income of Taka 3,24,388.00 and being aggrieved by the said assessment the applicant preferred an appeal before the Appellate Joint Commissioner of Taxes Comilla Range, Chittagong (South) Zone, Comilla whereupon the Joint Appellate Commissioner of Taxes accepted the appeal and reduced the income made by the Assistant Commissioner of Taxes by his order dated 19-2-91. The respondent being aggrieved by the aforesaid order of the Appellate Joint Commissioner of Taxes filed an appeal before the Taxes Appellate Tribunal and the Additional Bench No.2, Chittagong of Taxes Appellate Tribunal after hearing the parties modified and set aside the order of the Appellate Joint Commissioner of Taxes by its order dated 28-11-91 and being aggrieved by the said order of the Income Tax Appellate Tribunal the assessee applicant preferred this reference to answer the following questions:

(2.) Mr. AFM Firojuddin Bhuiyan, the learned Advocate appearing for the applicant, submits that the applicant is an old man of about 70 and is widower and lives with his lone servant in the mofassil town of Noakhali and he is by profession an Advocate and now-a-days rarely comes to the Court and, as such, his professional income ought to have been accepted by the Assistant Commissioner of Taxes as shown in the return. The learned Advocate further submits that the Assistant Commissioner of Taxes on a misreading of all the materials on record illegally added the income of building. The learned Advocate further submits that as usual the learned assessee advocate did not maintain any books of account and failed to produce any documentary evidence in support of his declared income and the Assistant Commissioner estimated his provisional income as lawyer at Taka 70,000.00. No basis whatsoever has been disclosed by the Assistant Commissioner for assessing his income on that figure nor was any opportunity given to the Assessee applicant to explain his position. The Appellate Joint Commissioner of Taxes estimated the Income at Taka 40,000.00 considering the old age of the assessee applicant but this was also done without any basis and the Appellate Tribunal estimated the income at Taka 48,000.00 holding that the estimates of professional receipt at Taka 40,000.00 is a bit low. This was also done without material basis. The learned Advocate for the applicant submits that there is no dispute that the applicant is an old man of about 70 and the fact that he rarely attends the Court and that without giving any opportunity to explain his position the Assistant Commissioner of Taxes as well as the Appellate Tribunal arbitrarily fixed the professional income at Taka 70,000.00 and 48,000.00 respectively without any basis and hence this cannot be sustained in law as the same is against the principle of natural justice. Considering the facts and circumstances of the Case and submission made by the learned Advocate for the applicant, we find that in the instant Case the Revenue authority without giving any opportunity to the applicant and without also any material basis arbitrarily fixed the professional income of the applicant as aforesaid. Hence we answer the question raised in paragraph 10(i) in the negative and in favour of the assessee applicant.

(3.) The learned Advocate appearing for the applicant submits that the Assistant Commissioner as well as the Appellate Tribunal most illegally included the income from house property which did not belong to the applicant.