Income Tax Ordinance (XXXI of 1979)---

----Ss.61, 62, 63, 108, 109, 110, 111 & 138---Constitution of Pakistan (1973), Art. 199---Constitutional petition ---Assessee filed income-tax return declaring nil income in Part I and "exempt income" in Part II being agricultural income---Issuance of numerous notices under S.61, Income Tax Ordinance, 1979---Assessee deliberately withheld the information sought and abstained from participating in the proceedings---Documents sought under S.62 of the Ordinance were not produced by assessee to substantiate the claim of exempt income---Assessment framed under S.63 of the Ordinance at a taxable income was based on the past history of the assessee and penalty was imposed on assessee under Ss. 108, 109, 110 & 111 of the Income Tax Ordinance, 1979---Assessment was upheld by Commissioner of Income Tax (Appeal) and, subsequently, revision under S.138 of the Income Tax Ordinance also met the same fate---Held, Assessing Officer was justified in making assessments to the best of his judgments---Exercise of discretion by the Assessing Officer was not arbitrary, capricious or based on suspicion, conjectures or surmises---Constitutional petition was dismissed by High Court in circumstances.

R. H. Naqvi for Petitioner.

Sh. Haider for Respondents.

Date of hearing: 18th November 1997.

JUDGMENT

RAJA QURESHI, J.---The petitioner in the present petition seeks the following orders from this Court:

(i)Declare the impugned order dated 14-7-1993 passed by the Respondent No. 1 is ab initio, void, unlawful and of no legal effect.

(ii)Restrain the respondents from taking any action/proceeding of whatever nature against the petitioner by themselves or through any other agency.

(iii)Cost of this petition.

(iv)Any other further relief this Hon'ble Court deems fit and proper in the circumstances of this case."

The contention of the petitioner is that for the assessment year 1989-90, Income Tax Return was filed declaring therein "Nil" Income in Part-I and "Exempt Income' of Rs.1,80,000 in Part-II. The Exempt Income was detailed to be agricultural income. Ex parte assessment order was passed under section 63 of the Income Tax Ordinance and the assessment was finalized at a total income of Rs.2,50,000. This assessment order was challenged in Appeal before the respondent No.2, Commissioner of Income Tax Appeal, Zone-IV, Karachi, who upon hearing the same upheld the assessment finalized by the respondent No.3. Subsequently, revision under section 138 of the Income Tax Ordinance 1979 also met the same fate.

It was contended by the counsel for the petitioner that "Exempt Income" has been ignored whereas "Nil Income" has been computed at Rs.2,50,000 and further that the petitioner has been punished under the penal provisions 108, 109, 110 and 111 of the Income Tax Ordinance while making such assessment under section 63 of the Income Tax Ordinance. It was further contended before us that even if past history is the same, yet it cannot form basis of the current assessment order i.e. 1989-90. It was however, conceded by the counsel for the petitioner that income of the petitioner in the preceding year was computed at Rs.2,50,000.

On the other hand, the counsel for the respondent has contended before us that the petitioner had failed to respond to numberious notices sent to him under section 61 of the Income Tax Ordinance. Thereafter, the petitioner was called upon to appear in order to prove his contention by producing documents to the satisfaction, of the respondent No.3, such as Gardwari Certificate, Abyana Challans, Details and evidence of produce, expense and evidence of sale, alongwith copy of Usher, if filed. Such record was summoned by the respondent No.3, which the petitioner had deliberately withheld from being scrutinized. Consequently presumption of law would be against the petitioner specially in the circumstances when the taxes and dues, as assessed, by the respondent No.3 were upheld in appeal as well as at the stage of revision. In appeal and revision treatment which has been meted out to the petitioner was neither unfair nor unreasonable as the department had only relied upon the past history of the petitioner himself and has not in any manner aided something which has not come from the petitioner, though in the preceding year.

Taking into consideration that in the absence of any oral or documentary evidence having been brought on record by the petitioner despite repeated reminders. The petitioner had abstained to produce the record sought by the department which was particularised and was aimed to achieve certain information. Such process was duly served upon the petitioner. As such in the absence of the petitioner having produced such record, which the department had sought. The department was justified in making its assessment to the best of its judgment. Hence discretion exercised by the department is not arbitrary, capricious, and or based on suspicion, conjuctures or surmises or for that matter on no evidence at all. Of course, the said assessment would have been unwarranted by law whereby it could be inferred from that some thing artificially has been aided for arriving at the assessment by the respondent No.3. Moreover, record reveals that the petitioner had deliberately withheld the information sought and abstained to participate in the proceedings. As such the petitioner for such acts has to thank himself. Such material was neither produced in appeal nor at the stage of revision. The documents which were sought under section 62 of the Income Tax Ordinance by the respondent No.3 were never placed on record in terms of Gurdwari Certificate, Abyana Challans, Details and evidence of produce, expense and evidence of sale and payment of Usher in order to substantiate the claim-of agricultural income of Rs.1,80,000 being "exempt Income". Hence, exercise of jurisdiction under Article 199 of the Constitution of Pakistan, 1973 being discretionary in nature does not warrant any interference.

Petition, therefore, was dismissed with no order as to costs alongwith the listed application.

M.B.A./K-47/K Petition dismissed.