MUHAMMAD KHALID VS FAZAL KAREEM
1995 P T D 1236
[Lahore High Court]
Before Ahmad Saeed Awan, J
MUHAMMAD JAMEEL and another
Versus
THE INCOME TAX OFFICER/TAX RECOVERY OFFICER CIRCLE-14, ZONE B, Lahore
Writ Petition No. 5735 of 1995, decided on /01/.
th
May, 1995. Income Tax Ordinance (XXXI of 1979)---
----Ss.56 & 58---Constitution of Pakistan (1973), Art.199---Notice for furnishing return---Wealth Statement---Constitutional jurisdiction, exercise of---Challenge to assessment order ---Assessees neither filing income-tax return for specific years nor furnishing written statement of income in spite of service of notice---Effect---Constitutional jurisdiction could be exercised in appropriate cases, involving fiscal rights on allegations of misapplication of law or abuse of power to examine whether or not public functionary concerned acted in accordance with powers conferred on him by statute---Where assessee in spite of proper service under S.56, Income Tax Ordinance, 1979, neither filed returns for years in question, nor furnished written statements on income for those years and also for succeeding years, their conduct would be deemed to be objectionable---Such assessee's having not come to Court with clean hands, would not be entitled to seek remedy in Constitutional petition, especially where they had definite remedy by way of appeal---Constitutional petition was dismissed in circumstances.
Messrs Julian Moshang Dinshaw Trust and others v. Income Tax Officer Circle XVHI South Zone, Karachi and others 1992 SCMR 250 and Hafiz Muhammad Arif Dar v. Income Tax Officer PLD 19891SC 109 ref.
Mian Ashiq Hussain for Petitioner.
ORDER
The petitioners through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 seek that the impugned order, dated 13-12-1994 relating to assessment years 1985-86 to 1991-92 be declared as without lawful authority.
2. Briefly, facts of the case are that the petitioners filed returns of total income for assessment year 1991-92 declaring income from property for 6 months as alleged on the basis of actual rent received. The predecessor of the respondent issued notices under section 61/62/13 of the Income Tax Ordinance, 1979 to the petitioners indicating his intention to adopt the gross annual letting value of Suhail Plaza in the light assessed by Excise Department. The petitioners complied with the notices and filed their explanations accordingly. The Assistant Commissioner Circle 27, Zone-B, Lahore in the combined order filed the proceedings for the assessment years 1985-86 to 1990-91 by observing that the investment determined stands fully explained which calls for no interference and made the assessment for 1991-92 on the basis of A.L.V. adopted by the Excise Department.
3. The learned counsel contended that the impugned orders passed by the Assessing Officer are violative of the principles of natural justice and are beyond of jurisdiction.
4. It is well-settled principle of law that one of the conditions for grant of relief in which jurisdiction of the High Court is that the petitioners before it should not have any alternate adequate remedy. The opening words of Article 199 of the Constitution are re-produced for ready reference as under:----
"199(I). Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law:---"
5. True, Constitutional jurisdiction can be exercised in appropriate cases, involving fiscal rights and on the allegation of misapplication of law or abuse of power stepped in to examine whether or not public functionary concerned acted in accordance with the powers conferred on him by the statute; as observed by the Supreme Court in case Messrs Julian Moshang Dinshaw Trust and others v. Income Tax Officer Circle XVIII South Zone, Karachi and others 1992 SCMR 250.
6. The preliminary question arises whether the writ petition is entertainable by the High Court; as the Income Tax Ordinance, 1979 is a complete code in respect of income tax matters and the remedies by way of appeal or revision are available to an assessee.
7. The Assessing Officer, in case in hand, admittedly after filing of the Income Tax Return for the year 1991-92 issued notices under section 61/62/13 of the Ordinance for the assessment years 1985-86 to 1993-94 to which replies were submitted by the petitioners; admittedly the petitioners in spite of proper service under section 56 of the Ordinance neither filed returns for the years 1985-86 and 1986-87 nor furnished written statements in spite of service of notices under section 58(I) of the Ordinance for the years 1985-86 to 1991-92. Similarly the petitioners did not file return for the year 1993-94 in spite of notice under section 56 of the Ordinance.
8. The contention of learned counsel that the order is violative of principles of natural justice is devoid of merits; the A.R. of the petitioners appeared before the Assessing Officer; who after giving due considerations to the submissions of the petitioners; filed the proceedings of the assessment years 1985-86 to 1990-91 and made the assessment for the year of 1991-92 by observing:
"The assessee was specifically required to explain his position but the assess has failed to furnish any plausible explanation. Hence the GALV as confronted is adopted for assessment."
9.The petitioners were provided proper opportunity to represent their facts and were properly heard by the Assessing Officer; rather the conduct of petitioners remained objectionable and did not appear before him with clean hands. As already observed the Income Tax Ordinance is a complete code in itself. In case Hafiz Muhammad Arif Dar v. Income Tax Officer PLD 1989 SC 109. Their Lordships of Supreme Court observed:'--
"One of the conditions for grant of relief in writ jurisdiction of the High Court is that the petitioner before it should not have any alternate adequate remedy. In the present case, a remedy by way of appeal, is available to the petitioners."
10. In view of the above observations made by their Lordships, I am of the view keeping in view the conduct of petitioners; who have not come with clean hands before this Court even otherwise have remedy by way of appeal. The instant petition is not entertainable and is dismissed in limine.
M.BA./M/2142/L ??????????????????????????????????????????????????????????????????????????????? Petition dismissed.