MUHAMMAD SHARIF VS ADMINISTRATOR, MARKET COMMITTEE, KASUR
1993 P T D 580
[Lahore High Court]
Before Malik Muhammad Qayyum, J
SHEIKHUPURA FEEDS (PVT.) LTD., LAHORE
versus
COMMISSIONER OF INCOME-TAX (COMPANIES), LAHORE and 2 others
Writ Petition No. 3218 of 1992, heard on 19/01/1993.
(a) Income Tax Ordinance (XXXI of 1979)---
----S. 156(1)(2)---No order under S.156(1) which has the effect of increasing the liability of the assessee can be passed unless the affected parties have been given reasonable opportunity of being heard.
(b) Income-tax---
----Jurisdiction---Objection as to the jurisdiction must be raised before the Authority seeking to exercise that power.
(c) Income Tax Ordinance (XXXI of 1979)---
----S.156(1)(2)---Rectification---Commissioner of Income Tax in purported exercise of jurisdiction vested in him under S.156 withdrew the earlier order of his predecessor whereby he explained and amplified the said order ---Assessee objected to the jurisdiction of the Commissioner of Income Tax to re-open the matter---Held, objection as to the jurisdiction in such circumstances must be raised before Authority seeking to exercise that power---Commissioner of Income Tax in case of such an objection must decide the case through a speaking order after granting opportunity to the assessee of being heard in terms of S. 156(1)---Case was remanded to Commissioner to decide the same.
(d) Income-tax---
----Writ---If a petition for judicial review is otherwise maintainable, order of Commissioner of Income Tax would be subject to correction by the High Court.
Raja Muhammad Akram and Ali Sibtain Fazli for Petitioner.
Muhammad Ilyas Khan for Respondents.
Date of hearing: 19th January, 1993.
JUDGMENT
This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calls in question an order passed by the Commissioner of Income Tax Companies on 9th April, 1992 whereby in purported exercise of jurisdiction vested in him under section 156 of the Income Tax Ordinance, 1979, he proceeded to withdraw the earlier order of his predecessor dated 22nd August, 1990 whereby the order, dated 13th August, 1990 was explained and amplified.
2. One of the grounds raised by the learned counsel for the petitioner is that no order under Section 156(1) of the Income Tax Ordinance, which has the effect of increasing the liability of the assessee can be passed unless the affected parties have been given reasonable opportunities of being heard. It has been explained by the learned counsel that although in his reply the petitioner had specifically asked for hearing but that opportunity was not afforded to the petitioner for the reasons best known to the respondents. This contention of the learned counsel is well-founded and supported from section 156(2) of the Income Tax Ordinance, 1979. Faced with this situation, learned counsel for the respondents states that he has no objection if the matter is remanded for decision afresh to the respondents after hearing the petitioner.
3. Learned counsel for the petitioner, on the other hand, wants this Court to decide the other question namely as to whether respondents have any jurisdiction at all to reopen the matter. The contention is that the exercise being undertaken by the respondents does not amount to rectification. Reference has been made to Commissioner of Income Tax, Companies, II Karachi v. National Food Laboratories (1992 SCMR 687).
4. I am afraid this request of the learned counsel for the petitioner cannot be granted. The. question as to whether the respondents have jurisdiction to re-open the matter depends upon the answer to the further question as to whether or not the intended action amounts to rectification. The objection as to the jurisdiction in these circumstances must be raised before the authority seeking to exercise that power. Learned counsel for the respondents has assured that if such an objection is taken, it shall be decided by the respondents through a speaking order.
For the reasons stated above, this petition is allowed and the impugned order of the Commissioner Income Tax (Companies) Circular, Lahore is declared as without lawful authority and of no legal effect and the case is remanded to the respondents for decision afresh after granting an opportunity to the petitioner of being heard in terms of section 156(2) of the Income Tax Ordinance, 1979.
Learned counsel for the petitioner requests that it be clarified that it shall N open to the petitioner to raise all objections to assumption of jurisdiction by respondent No.l before him and to approach this Court again, if need so arises. No such clarification is necessary. Whatever objections are raised before the Commissioner, he shall be under an obligation to decide the same and any order passed by him is subjected to correction by this Court, if a petition for Judicial Review is otherwise maintainable. No order as to costs.
M.BA./S-256/1, ????????????????????????????????????????????????????????????????????????????????? Order accordingly.