Law: Income Tax Ordinance, 1979

Section: 154,13,61

Income Tax Ordinance (XXXI of 1979)---Ss.154, 61 & 13---Service of notice---Improper service---Effect--­Assessee assailed the order setting aside the assessment by First Appellate Authority on the ground that once it was established that notice had not been served properly the assessment order should have been annulled and not set aside---Validity---Assessing Officer had though proceeded on the basis of a notice which was not properly communicated to or served upon the assessee but it would not mean that the notice was without jurisdiction---If, in ordinary course of proceedings, a notice was not properly served and the ,Issuing Authority otherwise had the jurisdiction to assess the case it could not be annulled because in the process of material irregularity the Assessing Officer was still acting with jurisdiction---Illegality or irregularity in the exercise of jurisdiction was not the same as acting of the Authority without jurisdiction---Improper service of notice would not make an order "without lawful authority" or "of no legal effect" ---Order of the First Appellate Authority was upheld and assessee's appeal was dismissed by the Tribunal. 1971 SCMR 681 and 1986 SCMR 962 distinguished. 1985 PTD (Trib.) 178 and PLD 1966 SC I ref. THIS ORDER PASSED BY : KHAWAJA FAROOQ SAEED (JUDICIAL MEMBER).---In this petition filed by the assessee the order of the First Appellate Authority is assailed. The point advanced for adjudication is that the C.I.T. having held that the notice under section 61 was not properly served had no option but to annul and not to set aside the assessment. The brief facts of the case are that the assessee company that deals in medicine filed returns of income. Notices issued by the department remained uncomplied with as - a result of which the ex parte assessment has been considered as illegal. The notices were statedly served on a person to whom the assessee claimed to have no relationship hence the C.I.T. set aside the case. As regards improper service of notice is concerned there is no dispute to this extent. The A.R., therefore, argued that the Courts have taken the view that where giving a notice is a statutory obligation,…

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