(a) Income Tax Ordinance (XXXI of 1979)---

----S.136 [unamended]---Constitution of Pakistan (1973),Art. l99---Constitutional petition---Alternate remedy---Non availing of---Effect-- Constitutional petition was filed against the order of Income-tax Appellate Tribunal before amendment of S.136 of the Ordinance---Petition was not maintainable as the remedy of seeking reference under the unamended provision of S.136 of Income Tax Ordinance was available at the relevant time.

(b) Limitation Act (IX of 1908)---

----S.5---Income Tax Ordinance (XXXI of 1979), S.136---Constitution of Pakistan (1973), Art. 199---Constitutional petition ---Condonation of delay-- Petitioner diligently availing remedy before High Court was refused relief on account of jurisdictional objection---Petitioner, however, could apply for reference to Appellate Tribunal under S.136 of the Ordinance alongwith application under S.5 of the Limitation Act for condonation of delay on the plea of his proceedings with due diligence in the Constitutional jurisdiction before High Court---Such application for condonation of delay, if filed before Tribunal, was to be decided on its merits alone.

Zahid Hussain Khan for Petitioner.

Muhammad Ilyas Khan for Respondents

Date of hearing: 28th April, 1998.

JUDGMENT

The petitioner in this Constitutional petition has challenged the order of Income Tax Appellate Tribunal which petition was filed in October, 1995.

2. Previously, an objection was raised by the learned counsel for the respondents that the impugned order was appealable before Division Bench of this Court under section 136 of the Income Tax Ordinance, 1979 as amended in 1997. This question was resolved on 6-4-1998 when it was observed that amendment in section 136 of the Income Tax Ordinance was made in 1997 which had no retrospective application and since the petition was filed in 1995, therefore, the objection on the basis of amendment could not be possibly raised.

3. At the time of hearing of this petition today, learned legal advisor for respondents submitted that even if the amendment in section 136 is not attracted yet, the petitioner had the remedy of making application for seeking reference to High Court under unamended section 136 of the Ordinance and if application is not entertained then he can apply to the High Court against refusal to make reference. Under the unamended section 136 of the Ordinance, if a person is aggrieved by the order of Appellate Tribunal he can apply to a Tribunal within 90 days, for reference of questions of law to the High Court. If the application is refused, the aggrieved person can apply to the High Court which if not satisfied with the correctness of decision of the Appellate Tribunal, it can frame a question of law and provisions of subsections (4), (5), (6) and (7) will apply as they apply to reference under unamended provisions of the Ordinance.

4. Learned counsel for the petitioner submits that if at this stage, the petitioner moves the Appellate Tribunal, the application may not be rejected on the plea of limitation. Learned legal advisor for the respondents submits that provisions of section 5 of the Limitation Act were applicable at that time, therefore, the petitioner can apply for condonation of delay by explaining that he had been diligently availing his remedy in the High Court from where he could not seek relief on account of jurisdictional objection. He submitted that if some one pursues his remedy with due diligence before a forum which refuses relief on account of jurisdictional objection, this can be considered as a ground for condonation of delay but the petitioner shall give his explanation to the competent forum.

5. Learned counsel for the petitioner submits that he will be satisfied if' observations to this effect are made and that he will apply to the Appellate Tribunal for appropriate relief, in accordance with law.

6. Accordingly, this writ petition is disposed of with the observation that present writ petition is not maintainable as the remedy of seeking reference under section 136 of the unamended provisions of Income Tax Ordinance were available at the relevant time. The petitioner having once approached the authority in the hierarchy of jurisdiction is required to exhaust his remedy before invoking the Constitutional jurisdiction.

7. The petitioner may, if so advised, apply for reference to the Appellate Tribunal alongwith application for condonation of delay, on the plea of proceedings in due vigilance in the Constitutional jurisdiction, whi6h application, if filed, will be decided by the Tribunal in accordance with law and on its own merits, keeping in view the circumstances noted supra.

C.M.A./C-14/L Order accordingly