IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Present

Mr. Justice Muhammad Khurshid Alam Sarkar

And

Mr. Justice Sardar Md. Rashed Jahangir

Income Tax Reference Application No. 596 of 2019

with

Income Tax Reference Application No. 597 of 2019

with

Income Tax Reference Application No. 598 of 2019

with

Income Tax Reference Application No. 599 of 2019

In the matter of:

Commissioner of Taxes, Taxes Zone- 01, Chattogram

… Applicant (In all the Income Tax Reference Applications) -Versus- Delwar Hossain Dulal

... Respondent (In all the Income Tax Reference Applications)

Mr. Pratikar Chakma, D.A.G

... For the applicant Mr. Mahbub Shafique with

Mr. Sifat Mahmud, Advocates

... For the respondent

Judgment on : 16.11.2023

Sardar Md. Rashed Jahangir, J:

All the reference applications have been filed by the Commissioner

of Taxes, Taxes Zone-1, Chattogram under section 160 of the Income-tax Ordinance, 1984 arising out of Income Tax Appeal Nos. 682, 683, 684 and 685 of 2018-2019 (assessment years 2012-2013, 2013-2014, 2015- 2016 and 2016-2017) (filed by the DCT concerned) heard analogous with

Income Tax Appeal Nos. 1364, 1365, 1366 and 1367 of 2018-2019, formulating identical questions of law and in Reference Application No. 596 of 2019 the same are as follows:

“Questions of Law:

Question (i):

Whether, on the facts and circumstances of the case, the learned Taxes Appellate Tribunal, Chattogram Bench, Chattogram was legally justified in reducing the sales from Tk.15,00,00,000/- to Tk.12,00,00,000/- while the assessee failed to submit corroborative evidence or documents against notice under section 79 of Income-tax Ordinance, 1984? Does it violate the section 79 and 35 of Income-tax Ordinance, 1984?

Question (ii):

Whether, on the facts and circumstances of the case, the learned Taxes Appellate Tribunal, Chattogram Bench, Chattogram was legally justified in directing to the Deputy Commissioner of Taxes to accept Gross Profit @13% instead of 18% by considering the parallel case of Hexagon Chemical Complex Ltd., eTIN: 429774396301/ Cir-52(companies), Taxes Zone-3, Chattogram submitted by the assessee where GP was 12% in assessment year, 2012-2013 but the declared GP by the assessee in 2016- 2017 assessment year was 25% and when direct expenses claimed in the trading account were not vouched by corroborative evidences violating the section 79 and 35 of the Income-tax Ordinance, 1984?”

Assessee-respondent submitted his returns for the assessment years 2012-2013, 2013-2014, 2015-2016 and 2016-2017 under sections 82BB(1)/93/83(2), 83(2), 83(2) and 83(2) respectively declaring deferent amounts of yearly income for the aforesaid 4(four) assessment years. At the time of working out with the assessment, Deputy Commissioner of Taxes concerned (hereinafter referred to as „the DCT‟) rejected the declared version of sale and thereafter computed the sale at his own at Tk.15,00,00,000.00 (Taka fifteen crore), Tk.15,50,00,000.00 (Taka fifteen crore fifty lac), Tk.18,00,00,000.00 (Taka eighteen crore) and Tk.19,00,00,000.00 (Taka ninety crore) respectively and adopting deferent rates of G.P. on the said estimated sale.

Having aggrieved by the estimation of sales and adopted G.P. rates,

the assessee preferred as well as 4(four) appeals before the Appellate Joint Commissioner of Taxes, Appellate Range-2, Taxes Appeal Zone, Chattogram (hereinafter referred to as „the AJCT‟) in “BuLl Bf£m fœ ew-

05, 06, 07/p¡ LÑm-11/2017-2018” and “BuLl Bf£m fœ ew 13/p¡­LÑm-11/2017-

2018”. The AJCT by his separate orders dated 28.03.2018 and 26.08.2018 directed to reduce the estimated sales of DCT, finding in the following manner (for the assessment year, 2012-2013)- “e¢bl ®lLXÑ J fË¡pw¢NL abÉ ¢h­hQe¡u Ef Ll L¢jne¡l LaѪL Ae¤j¡e¢i¢šL ¢hœ²u fË¡‚me AaÉ¢dL fËa£uj¡e qJu¡u fË¡‚¢ma ¢hœ²u qÊ¡p L¢lu¡ 15,00,00,000/- V¡L¡l ÙÛ m 12,00,00,000/- V¡L¡ Ll¡ qCm”

and for rest of the assessment years employed almost the identical language in reducing