MANAK ALI KHAN VS MEMBER (COLONIES), BOARD OF REVENUE, PUNJAB, LAHORE
1997 P T D 1104
[Lahore High Court]
Before Malik Muhammad Qayyum, J
STATE CEMENT CORPORATION OF PAKISTAN PRIVATE LIMITED
Versus
COMMISSIONER OF INCOME-TAX
Writ Petition No. 12443 of 1994, decided on 26/06/1995.
Income Tax Ordinance (XXXI of 1979)---
----S.134---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Alternate remedy in form of statutory appeal already availed ---Effect---Assessee, a State Cement Corporation, aggrieved of order of C.I.T. (A) to the effect that Cement Development Fund received by if under Ordinance - II of 1979 was treated as income, filed a Constitutional petition before High Court under Art. 199 of the Constitution and also an appeal before the Income Tax Appellate Tribunal ---Validity-- Held, as assessee had chosen remedy for filing appeal before Income Tax Appellate Tribunal, therefore, Constitutional petition was clearly not maintainable.
Zia H. Rizvi for Petitioner.
Shahbaz Butt for Respondent.
Date of hearing: 26th June, 1995.
JUDGMENT
This judgment shall dispose of W.Ps. Nos. 12443 of 1994 and 667 of 1995 in which common questions of law arise for determination.
2. The petitioner, State Cement Corporation of Pakistan a company registered under the Companies Ordinance, 1984 in the public sector. It feels aggrieved of the decision of respondent i.e., Income Tax Authorities to treat the "Cement Development Fund" received by it under Ordinance II of 1979 as income for the purpose of the Income Tax Ordinance, 1979.
3. Before these petitions could be argued on merits, learned counsel for respondent has raised a preliminary objection that against the decisions of respondent dated 7-8-1994, the petitioner has already filed appeals which are pending before the Income Tax Appellate Tribunal where they have raised the same dispute as to whether or not any income-tax is payable on the cement development funds received by the petitioner company under Ordinance, II of 1979. This fact is not denied by the learned counsel for respondent who has, however, submitted that the petitioner had earlier filed W.P. No.6584 of 1994 which was disposed: of with the direction that the plea raised in the Constitutional petition may be repeated before the Commissioner of Income Tax before whom the proceedings are pending.
4. I fail to see how this contention of the learned counsel for petitioner advances his case as to the maintainability of the present Constitutional petition. No doubt the petitioner had raised various pleas before the Commissioner of Income Tax who by his detailed order dated 7-8-1994 has rejected the same and against his order the petitioner has gone to the Income Tax Appellate Tribunal. As the petitioner has chosen its remedy by filing appeals before the Appellate Tribunal, these petitions are clearly not maintainable. It is also to be noted that if the decision of the Appellate Tribunal goes against the petitioner, it can come to this Court by filing an application under section 136 of the Income Tax Ordinance, 1979 that is to be heard by a Division Bench of this Court. The petitioner cannot be allowed to bypass the normal procedure.
5.Learned counsel for the petitioner has attempted to argue than notwithstanding filing of the appeal by the petitioner, these petitions are maintainable as it has been held by the Supreme Court in various cases that it is not essential to file a departmental appeal when the matter relates to the interpretation of statutory instrument and the matter can be brought directly to this Court.
6. There may not be any cavil with this proposition but here the position is different as the petitioner has itself invoked the jurisdiction of the Income Tax Appellate Tribunal by filing appeals and there is no reason also as to why the Appellate Tribunal should not be allowed to decide the questions which are arising in these petitions.
In view of what has been stated above, these petitions are held to be not maintainable at this stage and dismissed, leaving the parties to bear their own costs.
C.M.S./S-67/LPetitions dismissed.