Nurun Nabi Vs. National Board of Revenue and others, 2016(1) LNJ 1

Case No: Writ Petition No. 5539 of 2009

Judge: A. F. M. Abdur Rahman,

Court: High Court Division,,

Advocate: Mr. Mosharaf Hossain,Mr. S. Rashed Jahangir,,

Citation: 2016(1) LNJ 1

Case Year: 2016

Appellant: Nurun Nabi

Respondent: National Board of Revenue and others

Subject: Income Tax,

Delivery Date: 2013-09-29

HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
A. F. M. Abdur Rahman, J.
And
Kashefa Hussain, J

Judgment on
29.9.2013 and 30.9.2013
 
Nurun Nabi
... Petitioner
-Versus-
National Board of Revenue and 4 others
... Respondents.
 
 
Income Tax Ordinance (XXXVI of 1984)
Section 83A(2)
It appears that no audit was held after the deemed finalized Self Assessment return, for the assessment year 2006-2007, was selected by the National Board of Revenue and that being a mandatory provision of law any violation of the same renders the further proceeding a nullity. This court finds with firm believe that the DCT concern without lawful authority thereafter proceeded to reopen the assessment, for the assessment year 2006-2007, harassing the assessee-writ-petitioner to travel up to Tax Ombudsmen and to the highest court of the country, incurring a great monetary expenses....(38)
 
Income Tax Ordinance (XXXVI of 1984)
Sections 83A(5) and 93(1)(2)
As the Tax Inspector has admitted that the assessee-writ-petitioner has submitted the bank statements before him no concealment of the documents can be alleged against the assessee-writ-petitioner. Further it appears that nothing has been said in the affidavit-in-opposition as to the categorical allegation of non-obtaining the prior approval of Inspecting Joint Commissioner, as has been alleged by the assessee-writ-petitioner. The opening version of sub-section 2 of section 93 of the Income Tax Ordinance 1984 categorically provide that no proceeding under section 93(1) can be initiated unless the criterion of sub section (2) is observed. Therefore, this court finds that the DCT concern has failed to comply the mandatory provision of section 83A(5) and section 93(2) of the Income Tax Ordinance 1984 which left the step under section 93 of the Income Tax Ordinance 1984, nugatory one. . . .(45)
 
Income Tax Ordinance (XXXVI of 1984)
Sections 93(2)(3)(a)(b) and 94 (2)
It appears from section 94(2) of the Income Tax Ordinance 1984 that the limitation of two years have been provided in the said section meaning thereby that the provision of section 93(3)(a) and (b) of the Income Tax Ordinance 1984 is applicable both for ordinary and the Self Assessment Scheme and in case of Self Assessment Scheme the same became barred after the elapse of two years and the provision of section 93(3)(a) and (b) cannot be invoked after the assessment barred by limitation under the provision of section 94(2) of the Income Tax Ordinance 1984. Because, the Self Assessment Scheme is a privilege and on an from the issuance of the receipt by the DCT concern as to receiving of a compliant return the same became finalized which become absolute after the elapse of two years, as provided in section 94(2) of the Income Tax Ordinance 1984. But the provision of section 93(2) being applicable for ordinary assessment will remain applicable as against five years of any assessment made in ordinary manner. Therefore, this court also on this count finds that the action taken by the DCT concern in respect of re-opening of the Self Assessment return after two years, by way of serving a notice dated 12.3.2008, calling upon the assessee-writ-petitioner to explain as to his six banks accounts, is a palpable illegality committed by him. . . . (49)
 
Spectra S.N. Tex Limited Vs. The Commissioner of Taxes, Income Tax Reference No. 39 of 2012 ref.
 
Mr. Mosharaf Hossain, Advocate
...For the Assessee-applicant.

Mr. S. Rashed Jahangir, DAG with
Ms. Nurun Nahar, AAG with
Mr. Saikat Basu, AAG.
...For I.T. Department.

Writ Petition No. 5539 of 2009 With Writ Petition No. 4761 of 2009
 
JUDGMENT
A.F.M. Abdur Rahman, J:
 
These two Writ Petitions filed by the same writ petitioner have been taken together for hearing as the similar and identical questions of law are involved in the rules and now disposed off by this single judgment.
       
Facts of the Case.
 
In Writ Petition No. 4761 of 2009 the rule nisi was issued on 23.7.2009 by this court to the following extent;

Let a rule Nisi be issued calling upon the respondents to show cause as to why the impugned assessment order dated 18.01.2009 under section 83A(1)/83A(2)/83(2)/156 section 20(2) of the Ombudsman Act, 2005 by the DCT companies Circle, Taxes Zone-01, Chittagong (against the income of the petitioner) for the assessment year 2006-2007 (Annexure-F) should not be declared to have been passed without lawful authority and is of no legal effect and/or such other or further order or orders as to this court may seem fit and proper.
 
In Writ Petition No. 5539 of 2009 the rule nisi was issued on 9.8.2009 by this court to the following effect;
Let a rule Nisi be issued calling upon the respondents to show cause as to why the impugned notice dated 30.3.2008 and 04.05.2008 under section 93 of the Income Tax Ordinance 1984 issued by the Deputy Commissioner of Taxes, Companies Circle 02, Taxes Zone-01, Chittagong so far as it relates to assessment of income of the petitioner for the assessment year 2003-2004, 2004-2005 and 2005-2006 (Annexure-F and F(1) and Notice dated 24.5.2009 asking the petitioner to produce books of accounts and other documents for the assessment of income of the petitioner for the assessment year 2003-2004, 2004-2005 and 2005-2006 issued by the Deputy Commissioner of Taxes, Companies Circle 02, Taxes Zone 01, Chittagong (Annexure-H) should not be declared to have been made without any lawful authority and is of no legal effect and/or such other or further order or orders as to this court may seem fit and proper.
 
Almost the similar factual circumstances have been stated in both the Writ Petitions which states that the writ-petitioner Nurun Nabi is an assessee of income tax as well as regular tax payee holding TIN. 349-106-1003/Coy-2. The writ-petitioner is the Director of income tax payee six private limited companies, namely (1) Balaka Hatchery Limited, having TIN. 306-200-4430/Coys-2, (2) Balaka Sweater Industries Limited, having TIN. 306-200-4326/Coys-2, (3) Balaka Composite Textile & Sweater Mills Limited, having TIN. 306-200-4262/Coys-2, (4) Balaka Re-rolling Mills Limited, having TIN. 306-200-4414/Coys-2, (5) Balaka Royel Textile Mills Limited having TIN. 306-200-4414/Coys-2 and (6) Balaka Royel & and Printing Limited and also shareholder of South Point Hospital Limited.
 
It has been stated in the writ petitions that the four Textile Mills under the Bangladesh Textile Mills Corporation, namely (1) Amin Textile Limited, (2) R.R. Textile Mills Limited, (3) Dost Textile Mills Limited and (4) Valuka Wollen Mills Limited, situated at Foujderhat Industrial Area in Chittagong, manufacturing low cost fabrics, were all loosing concern under the government management and the government was facing severe consecutive loss in those four textile mills for long. In order to save the loss and to pay the dues to the workers, the government decided to run the mills by private entrepreneur and accordingly the writ-petitioner was selected, being a textile expert, for managing the said four textile mills. Thereafter, the writ-petitioner entered into a contract with the Bangladesh Textile Mills Corporation (BTMC) as to the management procedure and financial affairs and accordingly obtained loan from 6(six) private Banks namely the (1) Premier Bank Limited, (2) Social Investment Bank Limited, (3) South East Bank Limited, (4) Mutual Trust Bank Limited, (5) Bangladesh Commerce Bank Limited and (6) Jamuna Bank Limited to invest in the said four textile mills for the purpose of importing raw materials from abroad and to maintain the expenses of the said mills including payment of back salaries to the workers. The writ-petitioner, having immense experience in the field, successfully started maintaining the said four textile mills and still doing the same job with success. The writ-petitioner obtained loan of Tk. 395,83,19,572.00 from aforesaid Banks and regularly transacted the said amount in the bank by way of paying back the loan dues and to withdraw the fresh amount from the bank account and in such course of transaction the writ-petitioner had a liability in the bank loan up to the date of filing his income tax return for the assessment year 2006-2007 at an amount of Tk. 18,75,83,796.00 to the said Banks.
 
Despite the fact of such loan liability on the shoulder and the payment of income tax regularly, the writ-petitioner had some undisclosed money in his hand and taking the privilege of the S.R.O. No. 200/Ain-2005, dated 6th July, 2005, the writ-petitioner declared his previously undisclosed amount and paid income tax on the said undisclosed amount at an amount of Tk. 33,75,000.00 through Pay Order No. 0177135 of the Bank Asia Limited, MCB. Sk. Mujib Road Branch, Chittagong, dated 17.10.2006.
 
It has been further stated that the writ-petitioner filed its income tax return for the assessment year 2006-2007 on 18.10.2006 under the Self Assessment Scheme, provided under section 83A(1) of the Income Tax Ordinance 1984 and the Deputy Commissioner of Taxes, Companies Circle-11, Taxes Zone-2, Chittagong, issued the receipt of the return, which deemed to be the finalization of the assessment for the assessment year 2006-2007. Thereafter, the writ-petitioner by availing the privilege of the S.R.O. being No. 98-Ain/2007, dated 4th June, 2007 paid a penalty @ 5% to the tune of Tk. 28,245.00 on his rest undisclosed income for the assessment year 2006-2007 through the Pay Order No. 6591446 of  Sonali Bank Ldt. Agrabad Corporate Branch, Chittagong, on 27.9.2007 and accordingly the writ-petitioner submitted a revised return for the assessment year 2006-2007 to the concerned Deputy Commissioner of Taxes which was duly received.
 
It has been stated that thereafter the writ-petitioner received a notice from the Deputy Commissioner of Taxes, Companies Circle-2, Taxes Zone-1, Chittagong, issued on 31.5.2005 under the provision of section 83(1) and 79 of the Income Tax Ordinance 1984 directing him to be present in a hearing on 12.6.2007 in respect of its income tax return for the assessment year 2006-2007.
 
The writ-petitioner complied the said notice and the authorized representative of the writ petitioner Mr. Omar Bhattacharjee, ITP submitted all the papers and documents in support of the income from (1) Amin Textile Limited, (2) R.R. Textile Mills Limited, (3) Dost Textile Mills Limited and (4) Valuka Wollen Mills Limited, before the concerned DCT.
 
The DCT concern in the meantime made a secret investigation in respect of the writ-petitioners income tax return for the assessment year 2006-2007 through the Tax Inspector of Companies Circle-2, Chittagong, on 8.10.2007 upon which the DCT concern made an assessment on 31.12.2007 for the assessment year 2006-2007 under the provision of section 83A(1), 83A(2)/83(2) of the Income Tax Ordinance 1984. Such a proceeding for the assessment being illegal the writ-petitioner preferred a writ petition on 8.5.2008, before the High Court Division and later obtained a rejection of the writ petition as not pressed and thereafter the writ-petitioner filed a complaint petition, being No. 143 dated 19.8.2008, before the Tax Ombudsmen, under the provision of section 13 of the Tax Ombudsmen Act 2005 against the taxes department. The Tax Ombudsmen upon hearing both the parties delivered his recommendation on 24th November, 2008 upon which the DCT concern made further assessment on 18.1.2009 relating to the assessment year 2006-2007.
 
Being aggrieved with and highly dissatisfied by the said assessment order dated 31.12.2007 made by the DCT concern, the writ-petitioner preferred the instant writ petition and obtained the rule as aforementioned.
 
In Writ Petition No. 5539 of 2009 similar facts have been stated as to the tax return for the assessment year 2006-2007 with an addition that the writ-petitioner submitted its income tax return for the assessment year 2003-2004, 2004-2005, 2005-2006 and 2006-2007 to the Deputy Commissioner of Taxes, Companies Circle-11, Taxes Zone-2, Chittagong, under the Self Assessment Scheme as provided under section 83A of the Income Tax Ordinance 1984. But the DCT concern after the proceeding taken in respect of the assessment year 2006-2007 further initiated proceeding under section 93 of the Income Tax Ordinance 1984 in respect of the assessment year 2003-2004, 2004-2005, 2005-2006 and 2006-2007 and issued show cause notice on 12.3.2008 calling upon the writ-petitioner to explain as to the source of investment and income which have been shown under the provision of S.R.O. 200/Ain/2005, dated 6th July, 2005 earlier upon which the writ-petitioner deposited huge amount of taxes. The said notice was received by the writ-petitioner on 30.7.2009 against which the writ-petitioner by a letter seriously objected the said proceeding under section 93 of the Income Tax Ordinance 1984. That being not stopped by the DCT concern, the writ-petitioner preferred the instant writ petition No. 5535 of 2009 and obtained the rule as aforementioned.
 
Respondent’s Contentions.
 
Pursuant to the service of notice of the rule, the learned Deputy Attorney General Mr. S. Rashed Jahangir along with the learned Assistant Attorney General Ms. Nurun Nahar and Mr. Saikat Basu, appeared on behalf of the Taxes Department and filed affidavit-in-opposition in the respective writ petition.
 
In Writ Petition No. 4761 of 2009 the taxes department stated that the writ-petitioner was asked to explain the source from where the money was deposited to the bank. But the writ petitioner failed to mention/explain the source of fund and as the writ petitioner did not mention the assessment year in respect of deposit of tax at an amount of Tk. 33,75,000.00 as per S.R.O. 200/Ain/2005, dated 6th July, 2005, the said declared undisclosed income was remained un-interfered, unchanged by the Tax Ombudsmen as well as the DCT concern. The issuance of receipt under section 83A(1) of the Income Tax Ordinance 1984 is not the final assessment rather the return may be selected for further proceeding as per the section 83A(2) of the Income Tax Ordinance 1984 and on the basis of definite information regarding concealment of income as per the provision of section 83A(5) of the Income Tax Ordinance 1984, the said declared undisclosed income was incredible, absurd, irrelevant, inconsistent against the deposited money of Tk. 395,83,19,572.00 found in several Bank accounts. The National Board of Revenue (NBR) selected the writ petitioners income tax return, filed under Self Assessment Scheme for the purpose of audit and the DCT concern for the purpose of auditing got local investigation report by the Inspector of taxes, issued letter to the writ petitioner informing his intention of audit and issued the notices under section 83A(1) and 79 of the Income Tax Ordinance 1984 directing the writ petitioner for production of books of account, asking for documentary evidence in favour of the shown income, expenditure and other requirement. But the writ petitioner filed a complain before the Honorable Tax Ombudsmen. The writ petitioner failed to produce documents before the Tax Ombudsmen to improve his case and accordingly the Tax Ombudsmen did not interfere the order of the assessment of the DCT concern who put his observation and recommendation regarding the complaint through his recommendation dated 28.11.2008. No injustice was committed to the writ petitioner to enabling him to invoke the writ jurisdiction of the High Court Division. The writ petitioner failed to produce any documents for his source of fund deposited in the bank accounts and accordingly the DCT concern was justified in making assessment of the selected file in accordance with the prior approval of the National Board of Revenue as per the section 83A(2) of the Income Tax Ordinance 1984. The DCT concern complied the recommendation of the Tax Ombudsmen and made the assessment on 18.1.2009 under section 83A(1), 83A(2), 83(2), 156 and section 20(2) of the Tax Ombudsmen Act 2005, without waiting for written order from the National Board of Revenue due to the time constraint of sixty days to implement the order of the Tax Ombudsmen. The instant writ petition is not maintainable under the provision of section 33 of the Tax Ombudsmen Act 2005 and accordingly the respondents have prayed for discharge of the rule.
 
By a supplementary-affidavit-in-opposition a photocopy of notice dated 22.2.07, issued under নথি নং- ৩৪৯-১০৬-১০০৩-সা-১১/৯১৯, has been filed before this court, stating that the supplementary affidavit is very much necessary for proper disposal of the rule. But without any statement as to the said notice in the supplementary affidavit excepting that an audit was held within the meaning of section 83A(2) of the Income Tax Ordinance 1984 and for the purpose of holding audit a notice dated 22.2.2007 was served upon the assessee-writ petitioner.
 
In writ petition No. 5539 of 2009 the Taxes Department stated in the affidavit-in-opposition that the concerned DCT came to notice from different sources that the writ petitioner had been maintaining a number of accounts in different banks. Thereafter, the DCT concern collected the bank statement from the said banks, taken prior approval of the Commissioner of Taxes as per the provision of section 113(f) of the Income Tax Ordinance 1984 and huge amount of money was found deposited in the writ petitioners bank accounts. Accordingly, the DCT concern proceeded to re-open the cases from the assessment year 2003-2004 to 2006-2007, under section 93 of the Income Tax Ordinance 1984 for concealment of income. Thereafter, issuing the notice, under section 93, 83(1) and 79 and being empowered under the provision of section 93(3)(b) of the Income Tax Ordinance 1984, the DCT concern re-assessed the income tax cases as he has reason to believe that the writ petitioner has for any assessment year concealed the particulars of his income or furnish inaccurate return thereof or omitted or failed to disclose materials fact for the assessment for such year within five years from the end of assessment year for which the assessment is to be made.
 
Appraisal of the Facts. 
 
These two writ petitions relates to the assessment year 2003-2004, 2004-2005, 2005-2006, 2006-2007 and 2007-2008 of the assessee-writ petitioner Nurun Nabi, who having obtained the management of the denationalized Textile Mills namely (1) Amin Textile Limited, (2) R.R. Textile Mills Limited, (3) Dost Textile Mills Limited and (4) Valuka Wollen Mills Limited, previously under the Bangladesh Textile Mills Corporation (BTMC), and upon obtaining loan from four private Banks to the tune of Tk. 395,83,19,572.00, started to manage and administer those denationalized textile mills under the agreement with the government of Bangladesh. Admittedly the writ petitioner is a regular income tax payer and submitted all his income tax returns as aforesaid, under the provision of Self Assessment Scheme prevailing at the relevant period under the provision of section 83A of the Income Tax Ordinance 1984. The said provision of Self Assessment Scheme indicates that upon submission of the return the DCT concern shall issue a receipt of receiving the return under the Self Assessment Scheme and the said receipt shall be treated as a deemed finalization of the assessment for the relevant assessment year. Accordingly, the writ petitioner upon obtaining the receipt from the DCT concern was satisfied as to his finalization of the assessment for those assessment years from 2003-2004 up to 2007-2008.
 
It appears that the National Board of Revenue under the provision of section 83A(2) of the Income Tax Ordinance 1984 selected the return of the writ petitioner for the assessment year 2006-2007 for audit and it appears from the subsequent assessment order that the DCT concern upon serving notice under section 83(1) and 79 of the Income Tax Ordinance 1984 called upon the writ petitioner to submit certain evidence and to attend the hearing of the re-opening of assessment case for the assessment year 2006-2007. Wherefrom, the dispute arose and ultimately the writ petitioner preferred the instant writ petition challenging the re-opening of the assessment case for the assessment year 2006-2007, before this court.
        
Arguments of the Parties.
 
The learned Advocate Mr. Mosharaf Hossain, appearing on behalf of the assessee-writ-petitioner, while taken this court through the provision of section 83A(2) of the Income Tax Ordinance 1984, prevailing during the assessment year 2006-2007, strenuously argued that the National Board of Revenue is empowered under the provision of section 83A(2) of the Income Tax Ordinance 1984 to select for an audit of any return, submitted under the Self Assessment Scheme as provided in the said section 83A of the Income Tax Ordinance 1984 and it is incumbent upon the DCT concern to hold an audit, experte, to make him satisfied as to any prospect of further proceeding with an end to re-open the said assessment and thereafter to serve notice under section 83(1) and 79 of the Income Tax Ordinance 1984, calling upon the concerned assessee to submit documents supporting the return and to remain present at the hearing of the case. But the DCT concern did not comply the mandatory provision of section 83A(2) of the Income Tax Ordinance 1984 in respect of holding an audit, rather directly serve the notice under section 83(1) and 79 of the Income Tax Ordinance 1984, calling upon the assessee-writ-petitioner to attend the hearing of the re-opened case for the assessment year 2006-2007. That being a palpable illegality the same cannot be sustained under the provision of law and as such the rules are required to be made absolute.

On the other hand the learned Deputy Attorney General Mr. S. Rashed Jahangir, appearing on behalf of the Taxes Department refuted the argument of the assessee-writ-petitioner and submitted that the DCT concern hold an audit after the return, for the assessment year 2006-2007 was selected for audit by the National Board of Revenue under the provision of section 83A(2) of the Income Tax Ordinance 1984 by way of serving a notice dated 22.2.2007, a copy of which has been annexed with the supplementary-affidavit-in-opposition, filed by the Taxes Department. Thereafter, the DCT concern appraising the same direction for his further proceeding to re-open the case, admittedly served notice under section 83(1) and 79 of the Income Tax Ordinance 1984, calling upon the writ petitioner to attend the hearing and to submit the evidence in support of the return. But that not being complied with, the DCT concern had no other alternative but to proceed in making the assessment order, which being lawful under the provision of law, the same cannot be declared to have been passed without lawful authority.

The learned Deputy Attorney General Mr. S. Rashed Jahangir next argued that the writ petitioner availed the provision of Tax Ombudsman Act 2005 and having failed to prove that no audit was held and that any legality committed by the DCT concern, failed to attend the further hearing held by the DCT concern upon getting the recommendation from the Tax Ombudsmen, whereupon the DCT concern further complied the observation as made by the Tax ombudsman and re-assessed the tax liability of the writ petitioner, which being lawful has been erroneously challenged in the instant writ petitions and therefore the rules are required to be discharged by this court.

Further from the Writ Petition No. 5539 of 2009 it appears that the DCT concern upon delivering the re-assessment order in respect of the assessment year 2006-2007, further found that huge amount of transaction has been made by the assessee-writ-petitioner in different banks which was not disclosed earlier in the returns filed under Self Assessment Scheme for the assessment year 2003-2004, 2004-2005, 2005-2006, 2006-2007 and 2007-2008 and thereafter the DCT concern upon serving a notice under section 93 of the Income Tax Ordinance 1984 re-opened those assessment years and upon obtaining a report from the Tax Inspector served a different notice upon the writ petitioner lastly on 4.5.2008, but as the writ petitioner preferred the instant writ petition, the same was stopped at that stage.
The learned Advocate Mr. Mosharaf Hossain vigorously argued that the DCT concern committed palpable illegality in re-opening the deemed finalized assessment for the assessment year 2003-2004, 2004-2005, 2005-2006 and 2007-2008 since the assessee-writ-petitioner did not conceal any of the bank transaction as made in respect of the accounts maintained with different banks relating to the denationalized enterprises, as the assessee-writ-petitioner upon disclosing his earlier undisclosed income availed the privilege of S.R.O. No. 200/Ain-2005 dated 6.7.2005 and S.R.O. being No. 98-Ain/2007, dated 4th June, 2007 and paid a huge amount income tax. Moreover, the Tax Inspector in his report categorically stated about the liability of the assessee-writ-petitioner amounting to Tk. 22,00,00,000.00  which indicates that there is no concealment as to any income of the writ-petitioner for those assessment years.

The learned Advocate Mr. Mosharaf Hossain next argued that by inserting the provision of section 83A(5) of the Income Tax Ordinance 1984 through the Finance Act 2003, the legislature has empowered the DCT concern to re-open a Self Assessment return deemed to be finalized by issuance of the receipt, if definite information came to the possession of the DCT concern. This empowerment made available to the DCT concern to the provision of section 93 of the Income Tax Ordinance 1984 and any Self Assessment return may be re-opened under such provision subject to the provision of section 94 of the Income Tax Ordinance 1984, which prescribed the time limit for such re-opening. The learned Advocate Mr. Mosharaf Hossain, contends that the DCT concern in the instant case failed to understand the implication of section 94 of the Income Tax Ordinance 1984 and without obtaining the prior approval of the Inspecting Joint Commissioner proceeded to re-open the assessment as aforesaid and therefore the instant rule challenging the illegal step taken by the DCT concern is required to be made absolute as have been taken without lawful authority.

The learned Deputy Attorney General Mr. S. Rashed Jahangir in this respect meticulously argued that the provision of section 83A(5) is an independent provision as it contains a non-obstantive clause indicating that irrespective of the provision of re-opening of a deemed assessment under the provision of section 83A(2) of the Income Tax Ordinance 1984, the DCT concern may proceed to reopen any of the Self Assessment Scheme deemed finalized assessment, if definite knowledge of concealment reached to the hands of the DCT concern and in the instant case the DCT concern upon obtaining definite knowledge of bank transaction of a huge amount served the notice under section 93 of the Income Tax Ordinance 1984, being empowered under the provision of section 83A(5) read with section 93 of the Income Tax Ordinance 1984 and all those assessment years having been within five years, the DCT concern lawfully served the notice.

The learned Deputy Attorney General Mr. S. Rashed Jahangir further argued that the DCT concern lawfully proceeded to reopen the deemed finalization of the tax liability for the assessment year 2003-2004, 2004-2005, 2005-2006, 2006-2007 and 2007-2008, since the privilege obtained by the assessee-writ-petitioner under the provision of S.R.O. No. 200/Ain-2005 dated 6.7.2005 and S.R.O. being No. 98-Ain/2007, dated 4th June, 2007 cannot be treated as have been a fact of non-concealment of income of the assessee-writ-petitioner, since the Tax Inspector in his report categorically stated that the assessee-writ-petitioner transacted huge amount in the bank account but did not mention the same  in the Self Assessment return, filed for those assessment years and that being the definite and constructive knowledge of the DCT concern, the issuance of notice under section 93 of the Income Tax Ordinance 1984 was quite lawful and as such the instant rule is required to be discharged.
 
Deliberation of the Court.
 
We have heard the learned Advocates and perused the materials on record and we have also meticulously considered the supplementary affidavit being annexed with the photocopy of a notice dated 22.2.2007 and also the respective assessment order passed by the DCT concern, initially for the assessment year 2006-2007 dated 31.12.2007.
 
The pertinent question raised in writ petition No. 4761 of 2009 is relating to whether the DCT concern complied the provision of section 83A(2) of the Income Tax Ordinance 1984. For a better appraisal we do reproduce the provision of section 83A(2) of the Income Tax Ordinance 1984 prevailing during the assessment year 2006-2007:

Income Tax Ordinance 1984
Section 83A: Self Assessment.—
(1)..........................
(2) Notwithstanding anything contained in sub-section (1) and section 93, the Board or any authority subordinate to the Board, if so authorized by the Board in this behalf, may select, in the manner to be determined by the Board,[a portion, not exceeding twenty percent.] of the returns filed under sub-section (1) and refer the returns so selected to the Deputy commissioner of Taxes for the purpose of audit and the Deputy Commissioner of Taxes shall thereupon proceed, if so required, to make the assessment under section 83 or section 84, as the case may be;
Provided that the Deputy commissioner of Taxes shall not proceed to make any audit in respect of a return, where such return is filed in accordance with rules for self assessment made by the Board for that year and shows at least fifteen percent, higher income than the income last assessed, even if the return is selected for audit.
 
The aforesaid provision of section 83A(2) of the Income Tax ordinance 1984 is a mandatory provision so far the question of holding an audit is concerned, since the provision contains a shallwhich further indicates that upon holding the audit, the DCT concern shall make him satisfy as to the requirement of further proceeding in respect of reopening of the deemed finalized assessment and thereafter he could assess the relevant return under the provision of section 83 of the Income Tax Ordinance 1984, if the assessee-writ-petitioner remained present at the hearing or under the provision of section 84 if the assessee failed to comply the notice and to attend the hearing before the DCT concern. In any case the holding of an audit is a mandatory one.

         In this respect the referred case of Spectra S.N. Tex Limited-Vs-The Commissioner of Taxes, reported in Income Tax Reference No. 39 of 2012, wherein one of us was a party decided as under;

The provision of section 82BB(3) of the Income Tax Ordinance 1984 has an indication that upon auditing the return if the DCT concern considers for fresh assessment, he can proceed for assessment afresh. This provision indicates the two way exercise in the matter, firstly ‘Audit’ and then if required ‘fresh assessment.’ Because, these two words have been used in the section in disjunctive manner indicating step to be taken one after another.
 
Therefore, it appears that the holding of an audit is a must one.
 
The learned Deputy Attorney General Mr. S. Rashed Jahangir relied upon the notice Annexure-A in the supplementary affidavit-in-opposition filed in Writ Petition No. 4761 of 2009 and submited that the DCT concern lawfully hold the audit after getting the selection of the Self Assessment return from the National Board of Revenue for audit and therefore the main ground as has been taken by the assessee-writ-petitioner goes. This has prompted us to meticulously examine the point as to the fact of holding of audit by the DCT concern prior to reopening of the deemed finalized assessment for the assessment year 2005-2006.
 
Annexure-A appended to the supplementary affidavit-in-opposition, as aforesaid, is dated 22.2.2007 which has been issued under the নথি নং- ৩৪৯-১০৬-১০০৩-সা-১১/৯১৯ addressed to জনাব মোঃ নুর্রন্নবী and for a better appraisal the entire Annexure-A is reproduced below;
 
গণপ্রজাতন্ত্রী বাংলাদেশ সরকার
উপ কর কমিশনারের কার্যালয়
সার্কেল-১১
কর অঞ্চল-২, চট্টগ্রাম।

নথি নং-৩৪৯-১০৬-১০০৩/সা-১১/৯১৯ তারিখ ২২/০২/২০০৭

জনাব মোঃ নুরউন নবী
মালিক মেসার্স
১. অাকতার এন্টারপ্রাইজ
২. বলাকা ট্রেডার্স
৩. এস আর কপোরেশন
৪. নবী এন্ড কোং  ৯৩২, শেখ মজিব রোড়, চট্টগ্রাম।

বিষয়ঃ আয়কর অধ্যাদেশ, ১৯৮৪ এর ধারা ৮৩অ (২) এর বিধান অনুযায়ী জাতীয় রাজস্ব বোর্ড কর্তৃক  অডিট এর জন্যঅনুমোদন প্রাপ্ত মামলা নিষ্পত্তি ও পরিদর্শন প্রসঙ্গে।

উপর্যুক্ত বিষয়ের প্রতি আপনার দৃষ্টি আকর্ষন করিতেছি।

আয়কর অধ্যাদেশ, ১৯৮৪ এর ধারা ৮৩অ (২) এর বিধান অনুযায়ী স্বনির্ধারণ পদ্ধতিতে দাখিলকৃত রিটার্ন হইতে অডিট করার জন্য জাতীয় রাজস্ব বোর্ডের নথি নং- জারাবো/কর-৭/আঃআঃবিঃ/স্বনির্ধারনী/২০০৫-২০০৬/১৬(১০), তারিখ ০৫.০২.২০০৭ এর মাধোমে আপনার দাখিলকৃত ২০০৬-২০০৭ কর বৎসরের আয়কর রিটার্ণটি পরবর্তী নিরীক্ষা কার্যত্র্রমের জন্য মনোনীত হইয়াছে।

এমতাবস্থায় ২০০৬-২০০৭ কর বর্ষে আপনার দাখিলকৃত সম্পদ বিবরনী ও আয়কর রিটার্ণে প্রদর্শিত আয় অডিটের জন্য নিম্মোক্ত ( চিহ্রিত) তথ্য প্রমান আবশ্যকঃ
১. ব্যাংক হিসাব বিবরনী
২. গৃহ সম্পত্তির পূণাঙ্গ ঠিকানা, আবস্থান, প্রতি তলার আয়তন ও ভাড়া সংক্রান্ত তথ্য ও প্রমাণ
৩. প্রদর্শিত বিক্রয়ের স্বপক্ষে বিক্রয় রেজিষ্টার, মজুদ রেজিষ্টার, ক্যাশ বুক ও লেজার বুক
৪. বিদেশ ভ্রমন সংক্রান্ত তথ্য, পাসপোর্টের কপি, বাড়ী ভাড়া প্রদান সংক্রান্ত তথ্য ও প্রমান, সন্তানদের পড়ালেখা ৫. সংক্রান্ত তথ্য ও প্রমান, বিদ্যুত বিল ও টেলিফোন বিলের কপি
৬. সুদ/ ডিভিডেন্ড ওয়ারেন্ট জমা হওয়ার স্বপক্ষে ব্যাংক বিবরনী
৭. আয়কর বিধি-৮ মোতাবেক রক্ষিত হিসাবের খাতাপত্র (ডাক্তার ও এডভোকেট করদাতাদের ক্ষেত্রে প্রযোজ্য)
আমদানী/রপ্তানী সংক্রান্ত তথ্য এবং সাপোর্টিং ব্যাংক বিবরনী
৮. ১৯এএএ ধারায় বিনিয়োগের সমর্থনে প্রমান্য কাগজপত্র
৯. অন্যান্য প্রমানপত্র (যদি থাকে)

উপরে বর্ণিত তথ্যাদি/কাগজপত্র আগামী ২৭/০৩/২০০৭ ইং তারিখের মধ্যে অফিস চলাকালিন সময় নিম্নস্বাক্ষরকারীর বরাবরে দাখিলের জন্য অনুরোধ করা হইল। উল্লেখ্য যে, বর্ণিত তথ্য প্রমান দাখিল না করিলে বা দাখিলকৃত প্রমাণাদি সন্তোষজনক বিবেচিত না হইলে আপনার দাখিলকৃত স্বনির্ধারিত রিটার্ণটিকে সাধারন রিটার্ণ হিসাবে গণ্য করিয়া কর মামলা নিষ্পন্নের ব্যবস্থা গ্রহন করা হইবে। বিশেষভাবে উল্লেখ্য যে, আপনার দাখিলকৃত কাগজপত্র দ্বারা  যদি স্বনির্ধারনী পদ্ধতিতে দাখিলকৃত রিটার্ণ ব্যাখ্যায়িত হয় তবে তাহা নিরীক্ষা কার্যক্রম হইতে বাদ দেওয়া হইবে।

জাতীয় রাজস্ব আহরণ ও সঠিক কর নিরুপনের স্বার্থে আপনার সহযোগিতা একান্ত কাম্।

মোঃ মনিরুজ্জামান
সহকারী কর কমিশনার
সার্কেল-১১
কর অঞ্চল-২, চট্টগ্রাম।
 
The genuinity of the aforesaid Annexure-A dated 22.2.2007 has been seriously assailed by the learned Advocate Mr. Mosharaf Hossain, appearing on behalf of the assessee-writ-petitioner, for which we have considered the assessment order dated 31.12.2007 made by the DCT concern for the assessment year 2006-2007, wherein the opening Paragraph contain the following statement of the DCT concern appears;

"কর নির্ধারন আদেশ"
বিবেচ্য করবর্ষে মোট আয় ৬,০৮,০০০/- প্রদর্শন করতঃ করদাতা কর্তৃক স্ব-নির্ধারনী পদ্বতিতে আয়কর রিটার্ন দাখিল করিলে বিবেচ্য কর মামলাটি প্রথমে আয়কর অধ্যাদেশের ৮৩এ(১) ধারায় নিস্পন্ন করা হয়। পরবর্তীতে জাতীয় রাজস্ব বোর্ডের পত্র নং-জারাবো/কর-সা/আঃআঃবিঃ/স্বণির্ধারনী/২০০৫-২০০৬/১৬ তারিখ ৫-২-২০০৭ ইং মোতাবেক আয়কর অধ্যাদেশের ৮৩এ এর উপ-ধারা (২) এর বিধান অনুযায়ী আলোচ্য করবর্ষের স্ব-নির্ধারন পদ্বতি দাখিলকৃত উক্ত রিটার্ন নীরিক্ষার জন্য নির্বাচিত হয়।এমতাবসহায়, আয়কর অধ্যাদেশের ৮৩অ(১) ও ৭৯ ধারার নোটিশ সুনির্দিষ্ট চাহিদাপত্র সহ জারি করিয়া কর মামলা শুনানীর জন্য ১২-৬-২০০৭ ইং তারিখ ধার্য্য করিয়া সংগে এই অফিসের ৩১-৫-২০০৭ ইং তারিখে জারীকৃত পত্রের মাধ্যমে করদাতাকে বিষয়টি অবহিত করা হয় . .. . . . .''
 
From the aforesaid statement it appears that upon getting the return for the assessment year 2006-2007, as selected by the National Board of Revenue, the DCT concern directly issued the notice under section 83(1) and 79 of the Income Tax Ordinance 1984 to the Assessee-writ-petitioner, since nothing has been mentioned in the relevant portion of the assessment order as to the issuance of any notice, for holding audit, dated 22.2.2007. The Assessee-writ-petitioner, challenging the aforesaid assessment dated 31.12.2007, went to the Tax Ombudsmen under the provision of section 20 of the Tax Ombudsmen Act 2005, being complaint No. 143 dated 19.8.2008, upon which the DCT concern contested the said complaint case by filing a written explanation, which was considered by the Tax Ombudsmen in its judgment dated 24.11.2008. The relevant Paragraph in the judgment runs as follows;

অভিযোগ পত্রের অনুলিপি প্রেরণপূর্বক অভিযোগ বিষয়ের অভিযুক্ত কর কর্মকর্তাকে ব্যাখ্যা দাখিলের জন্য নোটিশ জারী করা হয়। জবাবে সার্কেলে নিয়োজিত কর কর্মকর্তা লিখিত ব্যাখ্যা দাখিল করেন। ব্যখ্যায় তিনি জানান যে করদাতা ২০০৬-২০০৭ কর বৎসরের স্ব-নির্ধারন পদ্বতি রিটার্নে কমিশন ব্যবসার আয়, কৃষি আয় ও গৃহ সম্পত্তি হইতে মোট আয় প্রদর্শন করেন ৬,০৮,০০০/- পরবর্তীতে জাতীয় রাজস্ব বোর্ডের নির্দেশনা মেতাবেক রিটার্ন নীরিক্ষার জন্য নির্বাচিত হয়। নীরিক্ষা কার্যত্র্রমের অংশ হিসাবে করদাতাকে ৮৩(১) ও ৭৯ ধারার নোটিশ প্রদানপুর্বক প্রদর্শিত আয় প্রমানের সুযোগ দেওয়া হয়। কিন্তু করদাতার প্রতিনিধি শুনানীতে হাজির হইলেও কোন তথ্য প্রমান দাখিল করিতে ব্যর্থ হন। তাই করদাতার আয়ের উৎস সম্পর্কে কর পরিদর্শক দ্বারা তথ্য সংগ্রহ এবং উহা পর্যালোচনাপূর্বক ৮৩(এ)(১)/৮৩(এ)(২)/৮৩(২) ধারায় কর নির্ধারণ করা হয়।
 
This statement also proves that the DCT concern has not stated anything before the Tax Ombudsmen as to the issuance of the notice dated 22.2.2007.
 
It appears that the Assessee-writ-petitioner in Writ Petition No. 4761 of 2009 has categorically raised the objection that the DCT concern did not hold any audit after getting the selected return from the National Board of Revenue. But nothing has been said in the affidavit-in-opposition as to the allegation of non-holding of audit, rather it has been admitted in Paragraph No. 10 in the affidavit-in-opposition that the DCT concern “for the purpose of auditing got local investigation report by the respective Inspector of Taxes, issued letter informing the Assessee-writ-petitioner his intention of audit and issued notices under section 83A(1) and 79 of the Income Tax Ordinance 1984 for production of books of accounts asking for documentary evidences in favour of the shown income, expenditure and other requirement found in the Inspectors report and consequently the DCT concern had to dispose of the cases under section 83A(1)/83A(2)/83(2) of the Income Tax Ordinance 1984.
 
All these statements and claim in the affidavit-in-opposition indicates and establishes the fact that the Annexure-A which has been annexed to the supplementary-affidavit-in-opposition is a tainted one. Had it been a genuine document, the DCT concern would definitely mentioned the same in his assessment order and even, failing to mention the same in the assessment order, it would have been mentioned before the Tax Ombudsmen as to such failure or even he could mention in the affidavit-in-opposition as to such failure in mentioning the said notice in the assessment order or before the Tax Ombudsmen with an explanation as to such failure. But nothing has been done excepting by way of filing a photocopy of the said notice annexing the same with the affidavit-in-opposition with a flimsy statement  that audit was held within the meaning of section 83A(2) of the Income Tax Ordinance 1984 and for the purpose of holding audit a notice dated 22.2.2007 was served upon the Assessee-writ-petitioner. This sort of activity of the tax executive is not only deplorable but liable to be taken into consideration seriously. The supplementary affidavit was sowrn in by one Alamgir Kabir, Assistant Commissioner of Taxes, Chittagong, who supplied the said photocopy to the learned Deputy Attorney General Mr. S. Rashed Jahangir and be fooled him in considering the said documents as a genuine document and to submit the same before this Highest Court. Therefore, a serious action is required to be taken against the Assistant Commissioner of Taxes Mr. Alamgir Kabir by the tax department or the National Board of Revenue upon getting this judgment at their end.
 
It appears that no audit was held after the deemed finalized Self Assessment return, for the assessment year 2006-2007, was selected by the National Board of Revenue and that being a mandatory provision of law any violation of the same renders the further proceeding a nullity. This court finds with firm believe that the DCT concern without lawful authority thereafter proceeded to reopen the assessment, for the assessment year 2006-2007, harassing the assessee-writ-petitioner to travel up to Tax Ombudsmen and to the highest court of the country, incurring a great monetary expenses.
 
In Writ Petition No. 5539 of 2009 the re-opening of the deemed finalization for the assessment year 2003-2004, 2004-2005, 2005-2006 and 2007-2008 has been challenged wherein, it appears, that after the deemed finalization of the assessment on the assessment year 2006-2007, the concerned DCT served a notice under section 93 of the Income Tax Ordinance 1984 on the assessee-writ-petitioner showing his intention to re-open the deemed finalization of the tax liability of the aforesaid assessment years.
 
The learned Deputy Attorney General Mr. S. Rashed Jahangir has correctly argued before this court that the provision of section 83A(2) of the Income Tax Ordinance 1984 has rendered a gateway to the DCT concern to invoke the provision of section 93 of the Income Tax Ordinance 1984 to re-open any deemed finalization of the assessment, since the Finance Act 2003 has inserted the said provision in the section which is therefore applicable from the Assessment year 2004-2005. From the provision of section 83A(5) of the Income Tax Ordinance 1984 it appears that the criteria as to possessing definite information by the DCT concern, is an important requirement to obtain the gateway to enter into the provision of section 93 of the Income Tax Ordinance 1984.
 
The Provision of section 93 of the Income Tax Ordinance 1984 reads as follows, prevailing at that time;
 
Income Tax Ordinance 1984
Section 93: Assessment in case of income escaping assessment, etc.—
  1. If, for any reason, any income chargeable to tax for any assessment, year has escaped assessment or has been under assessed or has been assessed at too low a rate or has been the subject of excessive relief or refund under this Ordinance, the Deputy Commissioner of Taxes  may issue a notice to the assessee containing all or any of the requirements which may be included in a notice under section 77 and may proceed to assess or determine, by an order in writing, the total income of the assessee or the tax payable by him, as the case may be, and all the provisions of this Ordinance shall, so far as may be, apply accordingly:-
Provided that the tax shall be charged at the rate or rates applicable to the assessment year for which the assessment is made.
  1. No proceeding under sub-section (1) shall be initiated unless definite information has come into the possession of the Deputy Commissioner of Taxes [and he has obtained] the previous approval of the Inspecting Joint Commissioner in writing to do so, except in a case where a return has not been filed under section 75 or 77.
  2. A notice under sub-section (1) may be issued by the Deputy Commissioner of Taxes,--
a)   in any case in which he has reason to believe that the assessee or any other person on his behalf has not filed a return under section 75 or 77, at any time;
b)   in any case in which he has reason to believe that the assessee has for any assessment year concealed the particulars of his income or furnished inaccurate particulars thereof or omitted or failed to disclose all material facts necessary for the assessment for such year, within [five years] from the end of the assessment year for which the assessment is to be made.
Provided that in a case where a fresh assessment is made for any assessment year in pursuance of an order sections 120, 121, 156 or 159, the period of [five years] referred to in this clause shall commence from the end of the year in which the fresh assessment is made;
c)   in any other case, within two years from the end of the assessment year for which the assessment is to be made.
  1. In computing the period of limitation for the purpose of making an assessment or taking any other proceedings under this Ordinance, the period, if any, for which such assessment or other proceeding has been stayed by any Court, tribunal or any other authority, shall be excluded.
  2. Notwithstanding anything contained in sub-section (3), where an assessment or any order has been annulled, set aside, cancelled or modified, the concerned income tax authority may start the proceedings from the stage next preceding the stage at which such annulment, setting aside, cancellation or modification took place, and nothing contained in this Ordinance shall render necessary the re-issue of any notice which has already been issued or the re-furnishing or refiling of any return, statement or other particulars which has already been furnished or filed, as the case may be.
Provided that the tax shall be charged at the rate or rates applicable to the assessment year for which the assessment is made.
 
The aforesaid provision of sub-section (2) of section 93 of the Income Tax Ordinance 1984 further provides for two requirement in respect of reopening of any deemed finalization of any tax liability of an assessee which are (1)  possession of definite information and (2) approval of the Inspecting Joint Commissioner in writing.
 
The learned Advocate Mr. Mosharaf Hossain categorically argued that no such definite information or prior approval of the Inspecting Joint Commissioner was obtained by the DCT concern.
 
It appears that the DCT concern has obtained a Tax inspectors report which has been annexed as Annexure-D in Writ Petition No. 5539 of 2009, wherefrom it appears that the Tax Inspector had found that there was a bank statement of different banks in the official income tax file, submitted by the asessee and  accordingly he stated “নথিতে রক্ষিত করদাতা কর্তৃক দাখিলকৃত বিভিন্ন ব্যাংক বিবরণী হইতে আলোচ্য বর্ষের ব্যাংক হিসাবের মোট জমা উওোলন চিত্র নিম্মে দেওয়া হইল”
 
Thereafter, the tax inspector in the annexure table, appended with the report made a statement of the transaction in The Premier Bank, Agrabad Branch, Social Investment Bank, Agrabad Branch, Jamuna Bank Limited, Agrabad Branch, Southeast Bank Limited, Agrabad Branch, Mutual Trust Bank, Khatungonj Branch, Bangladesh Commerce Bank, Agrabad Branch and Jamuna Bank Limited, Bhatiary Branch, wherefrom it appears that an amount of Tk. 395,83,19,572.00 was deposited in the bank account against which a withdrawal was made of an amount of Tk. 414,59,03,368.00. This shows that a liability approximately amounting to Tk. 22,00,00,000.00 is remaining against the assessee-writ-petitioner, which the learned Advocate Mr. Mosharaf Hossain explained as a bank loan liability of the assessee-writ-petitioner in respect of the administration and maintenance of the four denationalized textile mills.
 
As the Tax Inspector has admitted that the assessee-writ-petitioner has submitted the bank statements before him no concealment of the documents can be alleged against the assessee-writ-petitioner. Further it appears that nothing has been said in the affidavit-in-opposition as to the categorical allegation of non-obtaining the prior approval of Inspecting Joint Commissioner, as has been alleged by the assessee-writ-petitioner. The opening version of sub-section 2 of section 93 of the Income Tax Ordinance 1984 categorically provide that No proceeding under section 93(1) can be initiated unless the criterion of sub section (2) is observed. Therefore, this court finds that the DCT concern has failed to comply the mandatory provision of section 83A(5) and section 93(2) of the Income Tax Ordinance 1984 which left the step under section 93 of the Income Tax Ordinance 1984, nugatory one.
 
Another pertinent question lies here.
 
The learned Advocate Mr. Mosharaf Hossain has drawn the attention of this court to the provision of section 94 of the Income Tax Ordinance 1984 which has provided a time limitation in respect of the assessment of any income tax liability after the filing of the return. In his opinion the deemed finalization assessment under the provision of section 83A(1) of the Income Tax Ordinance 1984 cannot be re-opened after 15 (fifteen) months or under the provision of section 93 of the Income Tax Ordinance 1984 after two years and any attempt to re-open the deemed finalization of the assessment after that period will be a nullity.
 
The provision of section 94 of the Income Tax Ordinance 1984 prevailing at that period reads as follows;
 
Income Tax Ordinance 1984
Section 94: Limitation for assessment.—
(1)   Subject to the provisions of sub-sections (2) and (3), no order of assessment under the provisions of this Chapter in respect of any income shall be made after the expiry of six months from the end of the assessment year in which the income was first assessable.
(1A) Notwithstanding anything contained in sub-section (1) no order of assessment under sub-section (2) of section 82B or sub-section (2) of section 83A shall be made-
(a)   after the expiry of two years from the end of the assessment year in which the income was first assessable; or
(b)   after the expiry of the period of fifteen months from the end of the month in which the return is submitted, whichever is earlier.

(2)   Notwithstanding anything contained in sub-section (1) assessment under section 93 may be made—
(a)    in the cases falling under section 93(3) (a) and (b), within [two years] from the end of (b)    the year in which notice under the said sub-section was issued; and
in the cases falling under section 93(3)(c), within [one year] from the end of the year in which notice under the said sub-section was issued.

(3)   Notwithstanding anything contained in this section, limiting the time within which any action may be taken, or any order or assessment may be made, order or assessment, as the case may be, to be made on the assessee or any other person in consequence of, or to give effect to, any finding or direction contained in an order under sections 120, 121,156,159,161 or 162 or, in the case of a firm, an assessment to be made on a partner of a firm in consequence of an assessment made on the firm, [shall be made within thirty days] from the date on which the order was communicated and such revised order shall be communicated to the assessee within thirty days next following;
Provided that where an order of assessment has been set aside by any authority in that case the assessment shall be made within forty five days from the date on which the order was communicated to him.

Explanation I—Where, by an order under sections 120, 121, 156, 159,161 or 162, any income is excluded from the total income of the assessee for an assessment year, an assessment of such income for another assessment year shall, for the purposes of this section, be deemed to be one made in consequence of, or to give effect to, any finding or direction contained in the said order.
Explanation II—Where, by an order under sections 120, 121, 156, 159, 161 or 162, any income is excluded from the total income of one person and held to be the income of another person, an assessment of such income of such other person, shall, for the purposes of this section, be deemed to be one made in consequence of or to give effect to, any finding o r direction contained in the said order.

(4)   Where the Deputy Commissioner of Taxes fails to give effect to any finding or direction contained in an order referred to in sub-section (3) within the period stipulated therein, such failure of the Deputy Commissioner of Taxes shall be construed as misconduct.
 
It appears from section 94(2) of the Income Tax Ordinance 1984 that the limitation of two years have been provided in the said section meaning thereby that the provision of section 93(3)(a) and (b) of the Income Tax Ordinance 1984 is applicable both for ordinary and the Self Assessment Scheme and in case of Self Assessment Scheme the same became barred after the elapse of two years and the provision of section 93(3)(a) and (b) cannot be invoked after the assessment barred by limitation under the provision of section 94(2) of the Income Tax Ordinance 1984. Because, the Self Assessment Scheme is a privilege and on an from the issuance of the receipt by the DCT concern as to receiving of a compliant return the same became finalized which become absolute after the elapse of two years, as provided in section 94(2) of the Income Tax Ordinance 1984. But the provision of section 93(2) being applicable for ordinary assessment will remain applicable as against five years of any assessment made in ordinary manner. Therefore, this court also on this count finds that the action taken by the DCT concern in respect of re-opening of the Self Assessment return after two years, by way of serving a notice dated 12.3.2008, calling upon the assessee-writ-petitioner to explain as to his six banks accounts, is a palpable illegality committed by him and as such this court is inclined to hold that the issuance of such notice and all other subsequent notices was of without lawful authority having no legal implication.
 
Under the reasoning and discussion as above, this court finds merit in both the rules Nisi issued in Writ Petitions being No. 4761 of 2009 of 2009 and Writ Petition No. 5539 of 2009, which are required to be made absolute.
 
In the result, both the rules Nisi are made absolute.
 
The impugned assessment order dated 18.1.2009 under section 83A(1) /83A(2) /83(2)/156/section 20(2) of the Tax Ombudsmen Act 2005, by the Deputy Commissioner of Taxes, Companies Circle-2, Taxes Zone-1, Chittagong, for the assessment year 2006-2007, Annexure-F of the assessee-writ-petitioner is relating to Writ Petition No. 4761 of 2009 and the impugned notice dated 30.3.2008 and 4.5.2008 under section 93 of the Income Tax Ordinance 1984, issued by the Deputy Commissioner of Taxes, Companies Circle-2, Taxes Zone-1, Chittagong, so per as to relates the assessment of income of the assessee-writ-petitioner for the assessment year 2003-2004, 2004-2005, 2005-2006 Annexure-F and F(1) and the notice dated 24.5.2009 asking the writ-petitioner to produce books of accounts and other documents for the assessment of income of the writ-petitioner for the assessment year 2003-2004, 2004-2005 and 2005-2006, Annexure-H as challenged in the Writ Petition No. 5539 of 2009 are hereby declared to have been issued without lawful authority having no legal implication.
 
However, there shall be no order as to costs.
 
Ed.