SHAHIDA NADEEM VS S.H.O., POLICE STATION SADAR, CHICHAWATNI, DISTRICT SAHIWAL
1999 P T D 2910
[Lahore high Court]
Before Najam-ul-Hassan Kazmi, J
ABDUL MAJEED AWAN
Versus
INSPECTING ADDITIONAL COMMISSIONER OF INCOME-TAX
Writ Petition No.26331 of 1998, heard on 31/03/1999.
(a) Income-tax
----Quasi judicial authority---Objection as to jurisdiction---Every quasi judicial authority is under legal obligation to consider the objections as to its jurisdiction, if raised in the proceedings and to decide same as a preliminary step, before exercising jurisdiction or invoking authority under the relevant law.
(b) Income Tax Ordinance (XXXI of 1979)---
----Ss.66-A, 156 & 62/132---C.B.R. Circular No.321 T.L.J.T/76 of 1987, sated 22-3-1987---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Powers of Inspecting Additional Commissioner o revise Deputy Commissioner's order---Rectification of mistake-- jurisdiction---Assessment was made under S.62/132 of the Income Tax 3rdinance, 1979 and show-cause notice under 5.156 of the Income Tax Ordinance, 1979 was issued by the Assessing Officer ---During pendency of proceedings under S.156 of the Ordinance Inspecting Additional Commissioner invoked the jurisdiction under S.66-A of the Income Tax Ordinance, 1979 by issuing show-cause notice---Such notice was challenged High Court in its Constitutional jurisdiction---Validity---Constitutional petition was disposed of by the High Court with the observations that the petitioner should raise all objections as to jurisdiction either under S.156 order S.66-A of the Income Tax Ordinance, 1979 and also on the factual side, before the Assessing Officer or Inspecting Additional Commissioner who would decide the objections as to the jurisdiction as preliminary step and would proceed in the matter strictly in accordance with law---If the assessee was not satisfied with the decision, either on the question of jurisdiction or otherwise, he would be at liberty to challenge the order in appeal before the forum in the hierarchy of jurisdiction under the Income Tax Ordinance, 1979.
Naeem Akhtar for Petitioner.
Mian Subah Sadiq Kalasson for Respondent.
Date of hearing: 31st March, 1999.
JUDGMENT
Petitioner was an employee of National Bank of Pakistan, who remained posted in Gilgit from 27-5-1992 to 30-6-1994. Income-tax Return was submitted by the petitioner, as non-resident in Pakistan, claiming exemption granted by the C.B.R. on the salary of employees. Respondent No.2 found the petitioner to be not entitled to the exemption as he could no prove to hold non-residents status in Pakistan. Assessment was made under section 62 of the Income Tax Ordinance, 1979 creating some demand against the petitioner.
2. Petitioner challenged the order of respondent No.2 by way o appeal. It is claimed that the order was set aside with the direction that the proceedings be held de novo. It is maintained that respondent No 2 after obtaining information s, made assessment under section 62/ 132 of Income Tax Ordinance, 1979 vide order, dated 30-6-1979 holding the petitioner to be entitled to exemption vide C.B.R. Circular No.32-I.T.L.J.T/76 of 1987 dated 22-3-1987.
3. Later, respondent No.2 issued show-cause notice under section 15t of Income-tax Ordinance, claiming that the income of the relevant year was taxable in view of judgment passed in C.P. No.103 of 1994. According to the petitioner, he in his reply, questioned the jurisdiction to reopen the matter on the ground that the subject-matter did not fall within the purview of section 156 of the Ordinance.
4. The proceedings under section 156 of the Ordinance were still pending when respondent No. l allegedly invoked the jurisdiction under section 66-A of the Ordinance, by issuing show-cause notice, date( 24-4-1998. Petitioner submitted his reply to the notice and tendered certain explanations. Objections were also raised to the exercise of jurisdiction under section 66-A of the Ordinance. It is claimed that respondent No.2 had beer directed to issue I.T. No.30 alongwith demand notice, during the pendenc3 of proceedings under section 156 of the Ordinance. In this backdrop, the petitioner has filed the present Constitutional petition, to challenge the action of respondents and also the notice, issued to him.
5. The respondents, in their reply/comments, have not only refuted the allegations an merit but also challenged the maintainability of this petition or the ground that the matter was still to be adjudicated upon the competent Authority and that the petitioner will have a remedy of appeal etc. in the hierarchy of the Income-tax Ordinance and, therefore, filing of the Constitutional petition will not be permissible.
6. Admittedly, the petitioner could raise all the Objections to the exercise of jurisdiction, either under section 156 of Income-tax Ordinance or under section 66-A of the Ordinance and the respondents will be duty bound to attend to the Objections and determine the same by recording a well reasoned order. The matter will be reopened only if the objection as to the exercise of jurisdiction is overruled. Every quasi judicial authority is under legal obligation to consider the Objections as to its jurisdiction, if raised in the proceedings and to decide it as a preliminary step, before exercising the jurisdiction or invoking authority under the relevant law. The respondents are expected to first satisfy that the circumstances warrant for indulgence under the relevant provisions and that they have the jurisdiction to reopen the matter.
7. Learned counsel for the respondents has also submitted that the objection as to the jurisdiction would be attended to by the authority concerned as a preliminary step and will be decided in accordance with law.
8. In the circumstances noted supra, this petition is disposed of with the observations that the petitioner should raise all objections to the jurisdiction either and also on the factual side, before the respondents who will decide the objections as to the jurisdiction as a preliminary step and will proceed in the matter strictly in accordance With law. If the petitioner is not satisfied with the decision, either on the question of jurisdiction or otherwise, he shall be at liberty to challenge the order in appeal, before the forum in the hierarchy of jurisdiction under Income-tax Ordinance.
C.M.A./A-85/L Order accordingly.