Income Tax Ordinance (XXXI of 1979)---

----S.62---Qanun-e-Shahadat (10 of 1984), Art. 129---General Clauses Act (X of 1897), S.27---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ex parte proceedings against assessee after service of notice-- Validity---Such proceedings after service of notice under certificate of posting would be unquestionable when there were seven clear days between hearing of case and despatch of such notice to assessee---Notice under certificate of posting would be presumed to have been received by assessee in terms of presumption under Art. 129, Qanun-e-Shahadat, 1984 and under S.27 of General Clauses Act, 1897---Assessment under S.62, Income Tax Ordinance, 1979 being valid, no interference therein was warranted.

M. Ameen M. Bashir Ltd. v. Haji Soomar Haji Hajjan Potoli PLD 1977 Kar. 973 ref.

Muhammad Ather Saeed for Petitioner.

Nasrullah Awan for Respondents.

ORDER

MAMOON KAZI, C.J. ---The case of the petitioner is that it was incorporated in the year 1987 to carry on the business of manufacturing garments and its income upto the Assessment Year 1992-93 was exempted from tax under clause (125) of the Second Schedule to the Income Tax Ordinance, 1979. During the said year, the petitioner decided to wind-up its business and in its income return for the said year it declared loss of Rs.239,707. On the receipts' side, the petitioner had declared rental income of Rs.1,45,000 only as it had not conducted any business whatsoever, For the Assessment Year 1994-95, the petitioner declared a loss of Rs.12,50,153 in its return.

During the course of assessment proceedings for the Assessment Years 1993-94 and 1994-95, the respondent No.2 issued a notice to the petitioner under section 62 indicating its intention to estimate the income form business on the basis of past history at Rs.20,00,000 and income under section 25(e) of the Income Tax Ordinance at Rs.25,83,246. The case of the petitioner is that such notice was never received by the petitioner, but the respondent No.2 finalized the assessment for the Assessment Year 1993-94 ex parte, showing a total income of Rs.15,00,000. The petitioner after failing to succeed before the Commissioner of Income Tax (Appeals), filed a second appeal before the Commissioner of Income-tax (Appeals), filed a second appeal before the Income Tax Appellate Tribunal which is still pending for adjudication, but in the meanwhile, the respondents also finalized ex parte assessment for the year 1994-95 showing a total income of Rs.46,33,246.

As the petitioner was-inquired to deposit 15 per cent of the tax assessed before filing of appeal, it availed of the alternate remedy by filing a revision under section 138 of the Income Tax Ordinance. However, revision was also dismissed vide order dated 29-5-1996. and hence the present petition.

Learned counsel for the petitioner being aware of the fact that this Court in the exercise of its Constitutional jurisdiction, cannot enter upon the merits of the case, the only question that has been urged before us was that the assessment order dated 10-6-1995, passed ex parte by the respondent No.2, was without jurisdiction, as the petitioner did not receive any notice under section 62 from the said respondent. Such a plea was also raised by the petitioner before the learned Commissioner of Income-tax during the hearing of the revision, but the contention did not find favour with the learned Commissioner. As is indicated by the impugned order, it had become evident on the face of the record that the said notice had been issued to the petitioner under a certificate of posting on 28-5-1995. As there was a presumption under Article 129 of Qanun-e-Shahadat, illustration (f), "that the common course of business had been followed in particular cases" and there being seven clear days between the hearing of the case before the respondent No.2 and the despatch of such notice to the petitioner, it was held that the notice must have been received.

It is pertinent to point out that the said view taken by the respondent No.2 was not incorrect. Not only that there is a presumption in respect of official acts in the Qanoon-e-Shahadat, as just pointed out, but section 27 of the General Clauses Act, further provides as follows:

"27. Meaning of service by post. --Where any Contract Act or Regulation made after commencement of this Act authorises or requires any document to be served by post, whether the expression 'serve' or either of the expression 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the documents and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. "

In M. Ameen M. Bashir Ltd. v. Haji Soomar Haji Hajjan Potoli (PLD 1977 Kar. 973), it was held that:

"The plaintiffs deny this allegation and contend that such a letter was not received by the arbitrators. It is, however, to be appreciated that the certificate of posting is an official document and the address of the addressees given in the certificate is correct, consequently by the combined effect of section 114 of the Evidence Act and section 27 of the General Clauses Act, it will have to be presumed that the letter must have been received by the addressees unless proved to the contrary."

It may be pointed out that in the present case, no effort appears to have been made by the petitioner to rebut such presumption before the two respondents. Consequently, the contention raise on behalf of the petitioner that the proceedings before the respondent No.2 were held without notice to the petitioner was rightly repelled by the learned Commissioner.

In the result, we find no force in this petition and the same is, therefore, dismissed in limine together with the misc. application.

A.A./R-36/KPetition dismissed.