MUHAMMAD ISMAIL- VS INCOME TAX OFFICER MIRPUR
1992 P T D 1407
[Azad J&K High Court]
Before Khawaja Muhammad Saeed, J
MUHAMMAD ISMAIL--petitioner
versus
INCOME TAX OFFICER MIRPUR and 2 others---Respondents
Writ Petition No.82 of 1989, decided on /01/.
th
July, 1991. (a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---
----S.44---Income Tax Ordinance (XXXI of 1979), Ss.59-B, 61 & 65---Any person who is affected by the order of an authority, has to seek remedy first of all, under the relevant law on the subject---Extraordinary jurisdiction of High Court can be invoked only in cases where efficacious and alternate remedy is not available---No party can be allowed to avail Constitutional jurisdiction without first availing the remedies available to it under the relevant law.
Under section 44 of the interim Constitution Act, subject to other provisions of the Act, any aggrieved person can invoke the writ jurisdiction of High Court when no other remedy is available to him. In the present case, the petitioner had the right of appeal against the assessment order of the Income Tax Officer under section 129 of the Income Tax Ordinance of 1979. Under section 162 of the Income Tax Ordinance of 1979, the jurisdiction of all Civil Courts has been barred by express legislation. Under sections 129 to 136, different forums have been created for an aggrieved person to get remedy. An aggrieved -person has been provided remedy through reference against the order of appellate Income Tax Tribunal before the High Court. Even a right of appeal has been given before the Supreme Court. Any person who is affected by the order of any authority, first of all, has to seek remedy under the relevant law on the subject. The extraordinary jurisdiction of High Court could be invoked only in cases where afficacious and alternate remedy is not available. No party can be allowed to avail writ jurisdiction without first availing the remedies available to it under the relevant law.
(b) Income Tax Ordinance (XXXI of 1979)--
----Ss. 65, 66-A & 59-B---Return under S.59-B of the Ordinance (Simplified Procedure Scheme) was submitted by the assessee after the expiry of period of limitation---Such return thus was not compulsorily acceptable under the Simplified Procedure Scheme and assessee could not claim, as a right, that the return filed by him should have been presumed as correct and the Income Tax Officer was not legally competent to amend the same ---Assessee having violated the conditions laid down under the Simplified Procedure Scheme to the extent of limitation, Income Tax Officer under Ss.65 & 66-A of the Ordinance was justified to assess the income of the assessee in whose estimation, the assessee had intentionally suppressed his income.
The income-tax return under section 59-B of the Ordinance was submitted by the assessee after the expiry of period of limitation under the Simplified Procedure Scheme. The said income-tax return of the assessee was not compulsorily acceptable under the Simplified Procedure Scheme. Therefore, the assessee, who admittedly filed the income-tax return after the period of limitation, could not claim, as a right, that the return filed by him should have been presumed as correct and the Income Tax Officer was not legally competent to amend the same. The condition laid down under the Simplified Procedure Scheme to the extent of limitation, was violated by the petitioner while filing his return. Therefore, the Income Tax Officer, under sections 65 and 66-A of the Income Tax Ordinance, 1979, was justified to assess the income of the assessee in whose estimation, the assessee had intentionally suppressed his true income.
(c) Income Tax Ordinance (XXXI of 1979)---
----Ss. 65, 66-A & 129---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---If the assessee had not availed the right of appeal provided to him under S.129 of the Ordinance, order of assessment passed by Income Tax Officer would attain finality and High Court would not interfere in the same under S.44 of the Constitution Act, 1974.
Muhammad Rafique Dar for Petitioner.
Muhammad Afzal for Respondents.
ORDER
The facts giving rise to the present writ petition briefly stated are that petitioner is owner of a brick-kiln situated at Thothal, Tehsil Mirpur and is being assessed to income-tax for the past many years. For the assessment year 1988-89, the petitioner filed his return under the newly-introduced scheme known as Simplified Procedure Scheme on prescribed Form II-11-E. He assessed his income for the purpose of income-tax at Rs.58,000, whereas the last assessed income of the petitioner for the assessment year 1987-88 was Rs.57,000. He accordingly paid income-tax on the income assessed by himself. The Income Tax Officer issued a show-cause notice to him on April 17; 1989. The petitioner filed his written objections to the show-cause notice. The non- petitioner No-1 fixed the date for hearing as 30-5-1989. Later on, contrary to the abovementioned date, another notice was issued on 18-5-1989, through which the petitioner was required to show-cause as to why his return may not be taken out of Simplified Procedure Scheme and processed under the normal law. This show-cause notice was accompanied by a notice under section 61 of the Income Tax Ordinance. The Income Tax Officer, vide order dated 20-9-1989, assessed the income of the petitioner at Rs.1,10,000 under section 62 of the aforesaid Ordinance. In the light of the order of the Income Tax Officer, a demand notice was issued on September 20, 1989, requiring the petitioner to pay Rs.9,690 as income-tax. The petitioner feeling aggrieved has challenged the correctness and validity of the assessment order of respondent No.2 dated 20-9-1989 (Annexure `P') and demand notice issued under section 65 of the Income Tax Ordinance, 1979 on 20-9-1989 (Annexure `Q').
2. It was contended by the learned counsel for the petitioner:--
(i) That the Income Tax Officer was not legally competent to take out the return of the petitioner from the Simplified Procedure Scheme and process the same under the normal law;
(ii) That non-petitioner No. l was not competent to add even a single penny in the income declared by the petitioner under the Simplified Procedure Scheme; and
(iii) That the survey report which has been accepted in evidence by the Income Tax Officer for the purpose of ascertaining the income of the petitioner was not legally available to be read in evidence, particularly when the came was not communicated or confronted to the petitioner.
3. As against this, the learned counsel for the respondents has raised the following objections:-
(i) That the petitioner had an adequate and alternate remedy by way of appeal available to him under the aforesaid Ordinance against the older of assessment passed by the Income Tax Officer on 20-9-1989. Therefore, he wrongly invoked the writ jurisdiction of this Court;
(ii) That even the legality of the notice under section 61 of the Ordinance of 1977 could be challenged in revision, therefore, if the petitioner, due to his negligence, indolence and slackness, has not availed the remedy as provided by law within the prescribed period of limitation, he by his conduct, has accepted the correctness of the notice issued under section 61 of the Ordinance and, therefore, is estopped to challenge the legality of the same at a belated stage through the present writ petition.
4. The learned counsel for the petitioner contended that availability of any alternate remedy is not sufficient to oust the jurisdiction of this Court. He contended that the Income Tax Officer had not adopted the prescribed mode while processing the case of the petitioner even under the normal law, therefore, the income assessed by the Income Tax Officer, in the circumstances, could be challenged in writ petition as the same was assessed by adopting an arbitrary and unguided procedure,
5. Under section 44 of the Interim Constitution Act, subject to other provisions of the Act, any aggrieved person can invoke the writ jurisdiction of this Court when no other remedy is available to him. In the present case, the petitioner had the right of appeal against the assessment order of the Income Tax Officer under section 129 of the Income Tax Ordinance of 1979. Under section 162 of the Income Tax Ordinance of 1979, the jurisdiction of all Civil Courts has been barred by express legislation. Under sections 129 to 136, different forums have been created for an aggrieved person to get remedy. An aggrieved person has .been provided remedy through reference against the order of appellate Income Tax Tribunal before the High Court. Even aright of appeal has been given before the Supreme Court. Any person who is affected by the order of any authority, first of all, has to seek remedy under the relevant law on the subject. The extraordinary jurisdiction of this Court could be invoked only in cases where efficacious and alternate remedy is not available. No party can be allowed to avail writ jurisdiction without first availing the remedies available to it under the relevant law.
6. Even on facts, the petitioner has got no case. Under the Simplified Procedure Scheme, no authority was designated by any notification to receive the returns under the said scheme. The petitioner filed returns with the Commissioner Income Tax. As appears from the language of the show-cause notice, this return was sent to the Income Tax Officer as he has mentioned in the notice which was issued under section 61 of the Ordinance that return under the Simplified Procedure Scheme was filed beyond the prescribed date. Therefore, he processed the case of the petitioner under the normal law and directed him through notice issued under section 61 of the Ordinance to produce the accounts/evidence etc. to establish the declared income. It is interesting to note that the petitioner kept attending the proceedings. No doubt, he raised the question of authority of the Income Tax Officer by submitting that as no return under section 55 had been filed before him, therefore, notice under section 61 could not be legally issued to the petitioner- assessee. In the show-cause notice, which was accompanied by the notice issued under section 61 of the Ordinance, it was made clear that the return filed under the Simplified Procedure Scheme, was beyond the prescribed period. Therefore, notice under section 61 had been issued to him. If the petitioner had any grievance against the aforesaid notice, he should have challenged the legality of the same through revision petition before Commissioner under section 138 of the Ordinance. At no stage, he availed any remedy against the said notice. Under these circumstances, as the income-tax return under section 59-B of the Ordinance was submitted by the petitioner after the expiry of period of limitation under the Simplified Procedure Scheme for the assessment year 1988-89, the said income-tax return of the petitioner was not compulsorily acceptable under the Simplified Procedure Scheme. Therefore, the petitioner, who admittedly filed the income-tax return after the period of limitation, could not claim, as a right, that the return filed by him should have been presumed as correct and the Income Tax Officer was not legally competent to amend the same. As said in the early part of this order, the condition laid down under the Simplified Procedure Scheme to the extent of limitation, was violated by the petitioner while filing his return for the assessment year 1988-89. Therefore, the Income Tax Officer, under sections 65 and 66-A of the Income Tax Ordinance, 1979, was justified to assess the income of the petitioner, in whose estimation, the petitioner had intentionally suppressed his true income.
7. As said in the early part of the order, the right of appeal under section 129 was available against the order of Income Tax Officer dated 20-9-1989. The petitioner had not availed this remedy. Therefore, under these circumstances, the order of assessment passed by the Income Tax Officer had attained finality.
8. The demand notice was issued in the light of this assessment order of the Income Tax Officer. Therefore, no fault was committed while issuing the demand notice to the petitioner. The writ petition, in the light of the above mentioned observations, has been filed without any legal jurisdiction. The same stands dismissed with costs.
M.BA./515/HCAPetition dismissed.