MESSRS SAMEER ELECTRONICS VS ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-10, ZONE `A' LAHORE
1996 P T D 36
[Lahore High Court]
Before Ahmad Saeed Awan, J
Messrs SAMEER ELECTRONICS
Versus
ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-10, ZONE `A' LAHORE
Writ Petition No.6453 of 1995, decided on 24/05/1995.
(a) Constitution of Pakistan (1973)--
----Art. 199---Constitutional jurisdiction of High Court---Fiscal rights---Grant of relief---Scope.
One of the conditions for grant of relief in which jurisdiction of the High Court is that the petitioner before it should not have any alternate adequate remedy.
Constitutional jurisdiction can be exercised in appropriate cases, involving fiscal rights and on the allegation of misapplication of law or abuse of power, to examine whether or not public functionary concerned acted in accordance with the powers conferred on him by the statute.
Writ against void order may be refused if meant to enable petitioner to circumvent provisions of a statute.
Messrs Julian Hoshang Dinshaw Trust and others v. Income Tax Officer Circle XVIIIth South Zone, Karachi and others 1992 SCMR 250 and Muhammad Ismail v. Abdul Rashid and 2 others 1983 SCMR 168 ref.
(b) Income Tax Ordinance (XXXI of 1979)---
----S. 65---Constitution of Pakistan (1973), Art-199 ---Constitutional petition-- Definite information---Notice---Additional assessment---Deemed income-- Assessing Officer positively had in his possession definite information and he had obtained previous approval of AA.C for proceedings under S.65, Income Tax Ordinance, 1979---Assessee denied the factual position as alleged by the Assessing Officer---Held, question involved in the Constitutional petition related to factual controversy which could not be resolved in Constitutional jurisdiction of High Court and High Court in such cases would refrain from substituting its own findings of facts.
Section 65(2) of the Income Tax Ordinance, 1979 provides that no proceedings under subsection (1) shall be initiated unless definite information has come into the possession of the Income Tax Officer and he has obtained the previous approval of Assistant Commissioner of Income Tax in writing to do so.
In the present case the Assessing Officer positively was in possession of information as indicated in his letter. The Assessing Officer in the said letter alleged that -the petitioner was carrying on the business of releasing films after obtaining expensive master prints from Karachi and hundreds of films were available in the video market bearing the name of assessee's concern. The assessee vide his letter in response to the said notices denied the fact of "Releasing" films being without any evidence and proof and added that neither the import of said films was allowed to Pakistan nor violated any provision of law in that regard; the nature of controversy, particularly the legality and correctness of "releasing" said films was a factual controversy; such a question could not be resolved in Constitutional jurisdiction of High Court and High Court would refrain from substituting its own finding of fact
In cases where factual controversies were involved, Constitutional petition was not the proper remedy.
Muhammad Younus Khan and 12 others v. Government of N.-W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618 ref.
Latif Ahmad Qureshi for Petitioner.
ORDER
The petitioner Nadeem Aslam Prop. M/s. Sameer Electronics through Writ Petitions Nos.6453/95, 6454/95 and 6455/95 seeks issuance of notice under Section 65 dated 1-4-1995 for the each assessment years i.e. 1991-92,1992-93 and 1993-94 to be declared being without jurisdiction, against law and of no legal effect; as the common law point is involved in the aforementioned writ petitions; hence the three writ petitions would be disposed by this order jointly.
2. Briefly facts of the case are that the petitioner in the status of an individual filed his returns of income for the assessment years 1991-92 to 1992-93 under Self-Assessment Scheme; which were completed under Section 59(1) of the Ordinance and orders were communicated to the petitioner vide I.T. 30 dated 22-6-1993 for the assessment years 1991-92 and 1992-93 while for the assessment year 1993-94 on 10-4-1994.
3. The respondent No.l vide letter dated 22-1-1995 made certain inquiries from the petitioner pertaining to purchase of shop by the petitioner in 1986 and obtaining rights for distribution of Pakistani, Indian and English films. The petitioner in response to the said inquiries filed explanation vide his letter dated 20-2-1995. The respondent No.l being not satisfied with the reply of petitioner issued another letter dated 11-3-1995 intimating the petitioner that hundreds of films are available in the Video Market bearing the name of petitioner and that his office has a list of around 125 films released by the petitioner during these years. Further intimated that the petitioner's record shows that income from any such source has not been declared and concealed completely a line .of business being run by the petitioner and also required the petitioner to show cause why the petitioner's assessment for the aforementioned years may not be re-opened under Section 65 of the Income Tax Ordinance, 1979.
4. The petitioner in response to said notice submitted his reply referring to the petitioner's earlier letter dated 18-4-1987 after consideration of which assessment order dated 21-5-1987 pertaining to assessment year s 1985-86 and 1986-87 was passed. The respondent No.1 being not satisfied with the reply of petitioner issued impugned notice under Section 65 dated 1-4-1995 for the aforementioned years. The petitioner aggrieved by the issuance of notice filed a revision petition dated 23-4-1995 before the Commissioner of Income Tax respondent No.2; meanwhile respondent No.l issued impugned notices under sections 61 and 58(1) on 29-4-1995 for compliance by 6-5-1995; hence these petitions.
5. The learned counsel for the petitioner vehemently contended that using the same information on the basis of which assessment for the years 1985-86 and 1986-87 were made tantamounts to change of opinion which is not permissible in law and during the pendency of revision petitions of the aforementioned years before the respondent No.2; issuance of notice under sections 61 and 58(1) dated 29-4-1995 are ab initio illegal and beyond jurisdiction.
6. 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 petitioner before it should not have any alternate adequate remedy. The opening words of Article 199 of the Constitution, are reproduced for ready reference as under:--
"199(1).--Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law---."
7. 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 Hoshang Dinshaw Trust and others v. Income Tax Officer Circle XVIIIth South Zone, Karachi and others (1992 SCMR 250).
8. The preliminary question arises whether the writ petitions are entertain able 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.
9. Respondent No.l, in case in hand, -admittedly issued notices under Section 65/61/58(1) of Income Tax Ordinance; the petitioner in spite of proper service did not comply with the notices and filed returns under section 65 of the Ordinance; rather his conduct remained objectionable; the plea taken for the year 1986-87 cannot be made basis for the assessment years 1991-92 to 1993-94 as each year is a separate year. The main purpose of filing of the writ petitions is to circumvent provisions of Income Tax Ordinance 1979; in case Muhammad Ismail v. Abdul Rashid and 2 others (1983 SCMR 168) it was held as fallacious and writ against void order may be refused if meant to enable petitioner to circumvent provisions of a statute.
10. Section 65(2) of the Income Tax Ordinance provides that no proceedings under subsection (1) shall be initiated unless definite information has come into the possession of the Income Tax Officer and he has obtained the previous approval of Assistant Commissioner of Income Tax in writing to do so. The respondent No.l positively is in possession of information as indicated in his letter dated 11-3-1995. The respondent No.l in the said letter alleged that the petitioner is carrying on the business of releasing Indian films after obtaining expensive master prints from Karachi and hundreds of films are available in the Video Market bearing the name of petitioner's concern. The petitioner vide his letter dated 20-3-1995 in respons to the said notices denied the fact of "Releasing" Hindi films being without any evidence and proof and added that neither the import of Indian films is allowed to Pakistan nor violated any provision of law in that regard; the nature of controversy, particularly the legality and correctness of "releasing" Indian films is a factual controversy; such a question cannot be resolved in Constitutional jurisdiction of High Court and refrains (sic) from substituting its own finding of fact as observed by their Lordships in case Muhammad Younus Khan and 12 others v. Government of N.-W.F.P. through Secretary, Forest and Agriculture, Peshawar and others (1993 SCMR 618) as it is a consistent view of Supreme Court that in cases where factual controversies are involved, constitutional petition is not the proper remedy.
11. In view of the above discussion without pre-judging the issues on facts the petitioner is advised to comply with the notices and seek his remedy in accordance with law as provided in the Income Tax Ordinance.
12. I have no doubt that the notices respectively served upon the petitioner under the said provisions of law are valid and do not suffer from any infirmity. The writ petitions lack merits and are dismissed in limine.
M.HA/S.456/T
Petition dismissed.