1997 P T D 821
[Lahore High Court]
Before Ch. Khurshid Ahmad, J
Mrs. TAHMINA DAULTANA
Versus
Hafiz NAEEM-UD-DIN
Writ Petition No. 6397 of 1995, decided on 28/11/1995.
(a) Wealth Tax Act (XV of 1963)---
----Chap. VI---Constitution of Pakistan (1973), Art.199---Constitutional petition---Alternate statutory remedy if not efficacious ---Maintainability-- Where the petitioner had the remedy under Chap. VI, Wealth Tax Act, 1963 but same was not efficacious and speedy, Constitutional petition was maintainable under Art. 199 of the Constitution.
Premier Cloth Mills v. Sales Tax Officer PLD 1972 SC 257 and Nagina Silk Mills Ltd. v. I.T.O and another PLD 1963 SC 322 ref.
(b) Wealth tax---
----Assessment--=Constitutional petition---Maintainability of such petition-- Scope---High Court, under its Constitutional jurisdiction cannot sit and enquire into the mode of assessment adopted and its vires---High Court, however, has to satisfy itself about the legality of the mode adopted for issuing notice of demand and the prejudice if any caused to the petitioner-- Constitution of Pakistan (1973), Art. 199.
(c) Wealth Tax Act (XV of 1963)---
----Ss.30-C & 45-A---Income Tax Ordinance ~XXXI of 1979), S.93(2)-- Recovery of tax---Notice---Essentials---1f -the notice under S.30-C is not given to the assessee in Form C (format of notice under S.30-C), Provisions of S.45-A, Wealth Tax Act, 1963 would not cure the irregularity or omission on the part of the department.
In notice under section 30-C of the Wealth Tax Act, 1963, assessee is informed about the sum assessed and the penalty determined and payable by him. He is also put to notice that in case the amount be not paid he shall be liable to further penalty and to the issuance of warrants of distress and the notice to exercise the rights of appeal within 30 days of the receipt of the said notice. In the present case notice under section 93(2) of Income Tax Ordinance, 1979, apart from informing the due date for payment of the sum mentioned, the assessee was informed that the proceedings shall be initiated against her under subsection (3) of section 93 of Income Tax Ordinance, 1979 to recover the amount as arrears. It was very clear from the impugned notice that the department had under Tax Recovery Rules framed under subsection (5) of section 93 of Income Tax Ordinance, 1979, further proceeded to direct that the assessee should not sell or deal with any property belonging to her except with the permission in writing to that effect granted by the Tax Recovery Officer. Contents of the notice impugned clearly reflected that prejudice in fact was caused to the assessee and a legal right to appeal which was available to her and which was to be notified to her in Form-C, format of notice under section 30 of the Wealth Tax Act, was infringed. The provision of section 45-A of Wealth Tax Act, 1963 would not cure the irregularity or omission on the part of the department in not issuing the notice in the format prescribed under Wealth Tax Act, 1963, resulting in substantial prejudice to-the assessee.
Zia H. Rizvi for Appellant.
Shahbaz Butt for Respondent.
Date of hearing: 21st November, 1995.
JUDGMENT
The petitioner an assessee to wealth tax had allegedly been filing returns regularly on the valuation ending December 31 every year. For the years 1993-94 and 1994-95 she filed her returns alongwith computation of net wealth and had declared the value of the property owned by her. The respondents over-looked the value placed by the- petitioner and preferred to rely on the valuation prepared by the valuer of the Bankers. The valuers had assessed the price of the petitioner's property on the higher side and according to the petitioner the same was prepared for extending financial accommodation. Reliance on such evaluation according to the learned counsel for the petitioner was against the rules and procedure prescribed in this behalf. Notices of demand were issued under section 85 of the Income Tax Ordinance, 1979 for the Assessment year 1993-94 and also for the year 1994-95 by the respondent on 29-4-1995. Subsequently notice under section 93(2) of Income Tax Ordinance, 1979 was also issued by the respondent on 13-5-1995. These notices are impugned on the grounds of being inapplicable and nullity.
2. Learned counsel for the petitioner challenged the assessment as also the notices issued on the ground that the assessment was not made in accordance with law and was oppressive and discriminatory to the rights of the petitioner to be treated equally and in accordance with law. It was further contended that after the assessment of wealth tax, which according to him was also ex parte and mala fide the respondent was required under the law to issue notices in Form-C prescribed under section 30 of the Wealth Tax Act, 1963. No notice as the one under section 93(2), Income Tax Ordinance, 1979 could be issued unless a notice of demand prescribed in the Wealth Tax Act was issued.
3. Learned counsel for the respondent submitted that assessment of tax was made under the law and the petitioner had a remedy of appeal etc. as provided in Chapter VI of Wealth Tax Act, 1963 (Act XV of 1963) and that the petitioner had not filed an appeal or revision and thus writ petition was not competent.
4. Regarding objection relating to the format of notice and provision of law under which the impugned notices were issued, he conceded that the format used for issuance of impudent notices were not as provided under section 30 of the Wealth Tax Act, 1963 but hurried to rely on the provisions of section 45-A of Wealth Tax Act, 1963. He submitted that no assessment order, notice, warrant or other document made, issued or executed or purporting to be Trade, issued or executed under the said Act shall be void or otherwise inoperative merely for want of form, or for a mistake, defect or omission, unless be not of a substantial nature, prejudicially affecting an assessee. In the present case according to him the format of demand notices under section 85 and under section 93(2) of the Income Tax Ordinance, 1979 and issuance thereof would not vitiate the assessment itself; was not so materially prejudicial to the petitioner. .
5. I have 2tven my anxious consideration to the arguments addressed at the Bar. No doubt the petitioner directly approached this Court without availing the rights of appeal, revision and reference etc, as provided under Chapter VI of the Act, the present writ petition was still maintainable as in such circumstance where the efficacious and speedy remedy was not available the writ petitions are maintainable. Reliance is placed on Premier Cloth Mills v. Sales Tax Officer PLD 1972 SC 257 and Nagina Silk Mills Ltd. v. I.T.O. and another PLD 1963 SC 322.
6. So far as the impugning of the assessment is concerned that cannot be challenged through the present writ petition nor the Court can sit and enquire into the mode of assessment adopted and its vires. The Court was, however, to satisfy itself about the legality of the mode adopted for issuing notice of demand and the prejudice if any caused to the petitioner.
7. I am of the opinion that the petitioner was prejudiced in notice under section 30-C of the Wealth Tax Act, 1963, assessee is informed about the sum assessed and the penalty determined and payable by him. He is also put to notice that in case the amount be not paid he shall be liable to further penalty and to the issuance of warrants of distress and the notice to exercise 'he rights of appeal within 30 days of the receipt of the said notice. In case of impugned notice under section 93(2) of Income Tax Ordinance, 1979, Part from informing the due date for payment of the sum mentioned, the petitioner was informed that the proceedings shall be initiated against him under subsection (3) of section 93 of Income Tax Ordinance, 1979 to recover the amount as arrears. It is very clear from the impugned notice that the respondent had under Tax, Recovery Rules framed under subsection (5) of section 93 of Income Tax Ordinance, 1979, further proceeded to direct that the petitioner shall not sell or deal with any property belonging to her except with the permission in writing to that effect granted by the Tax Recovery ` Officer. It is clear from the contents of the notice impugned that prejudice in fact was caused to the petitioner and a legal right to appeal which was available to her and which was to be notified to her in Form-C, format of notice under section 30 of the Wealth Tax Act, was infringed. The provision of section 45-A of Wealth Tax Act, 1963 do not cure the irregularity or omission on the part of the respondent in not issuing the notice in the format prescribed under Wealth Tax Act, 1963, resulting in substantial prejudice to the petition.
8. In view of the above the notices issued to the petitioner under section 85 of Income Tax Ordinance, 1979 on 29-4-1995 for payment of tax assessed at Rs.1,10,301 for the year 1993-94 and 1,02,138 for the year 1994-95 and notice under section 93(2) of the said Ordinance for payment of assessed amount under section 93(2) thereof are declared to be without lawful authority and without any effect against the petitioner.
9. The writ petition is accepted in the above terms and to the above extent with no order as to costs.
M.B.A./T.8/L Order accordingly.