2000 P T D 306

[Karachi High Court]

Before Saiyed Saeed Ashhad and Abdul Ghani Shaikh, JJ

ISLAMUDDIN and 3 others

versus

THE INCOME-TAX OFFICER and 4 others

Constitutional Petition No.D-556 of 1991, heard on 09/04/1999.

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

----S.156---Rectification of mistake---Mistake apparent from record-- Requirements.

A mistake of an error to be rectifiable under section 156, Income Tax Ordinance, 1979 must be a mistake in the order which is apparent from the record, i.e. to say a finding which is absolutely contrary or in ignorance or in disregard of the evidence and material on record or a finding which could not have been arrived at on the- basis of the material on record or a mistake or error which may be seen floating and it should be so obvious that on reading of the order surfaces on the face of it. The other requirement for a mistake or an error to be apparent from the record is that in exercising power under section 156 of the Income Tax Ordinance the concerned Assessing Officer would not be required to undertake reappraisal of the evidence and interpretation of any provision of law for corning to a different opinion. If such an exercise was to be undertaken then it would not amount to rectification of the order and the concerned officer could not exercise power under section 156 of the Income Tax Ordinance for modifying and/or amending the finding or opinion expressed originally.

Commissioner of Income-tax v. Messrs National Food Laboratories 1992 SCMR 687; Shaikh Muhammad Iftikharul Haq v. Income-tax Officer, Bahawalpur PLD 1966 SC 524 and Pakistan River Steamer Limited v. Commissioner of Income-tax 1971 PTD 204 rel.

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

----Ss.156, 12(13), 19 & 21---Constitution of Pakistan (1973), Art.199-- Constitutional petition---Assessment years 1981-82 to 1982-83-- Rectification of mistake---Addition---Assessing Officer made addition to the declared income relating to the 1/4th share of each assessee in the rent received in respect of a building ---Assessee filed application for rectification of mistake under S.156, Income Tax Ordinance, 1979 with the contention that a grave mistake was committed in finalizing the assessments under S.19, Income Tax Ordinance, 1979 treating the assessee as an "Association of Persons" instead of framing the assessment under S.21, Income Tax Ordinance, 1979 and this illegality and/or mistake was due to inadvertent over-sight and as such was apparent on the face of the order and the record- Assessing Officer dismissed the application---First Appellate Authority as well as Appellate Tribunal found that no mistake was apparent from record and they confirmed the order of the Assessing Officer---Contentions of the assessees were that they could not have been treated as an Association OF Persons in respect of income/rent received by them from building as the respective share of each of the assessees was definite and ascertainable and the assessees should have been assessed under S.21 of the Income Tax Ordinance, 1979---Validity---Assessing Officer had given a finding consciously, deliberately and knowingly after taking into consideration the relevant provision of law applicable to the facts and the circumstances of the case and as such the order could only be modified, amended or set aside in exercise of the appellate powers---Both the Commissioner of Income-tax (Appeals) and the Appellate Tribunal had, therefore, rightly refused to interfere with the order of the Income-tax Officer rejecting the application under S.1.56, Income Tax Ordinance, 1979 and refusing to rectify the alleged mistake/error in exercise of the power under S.156, Income Tax Ordinance, 1979, as the finding which was labelled as an apparent mistake or error was not on account of inadvertence or over-sight.

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

----Ss.136(1), (2) & 156---Constitution of Pakistan (1973), Art.199-- Constitutional petition---Reference to High Court---Rectification of mistake- Assessing Officer rejected application for rectification of mistake---First Appellate Authority as well as Appellate Tribunal confirmed order of the Assessing Officer ---Assessee neither moved reference application under S.136(1), Income Tax Ordinance, 1979 before the Appellate Tribunal nor made application under S.136(2) of the Income Tax Ordinance, 1979 before High Court but approached the High Court by way of Constitutional petition---Validity---Order of the Appellate Tribunal having not been challenged by way of Reference .application under S.136 of the Income Tax Ordinance, 1979 either before the Appellate Tribunal or before High Court had attained finality and same could not be challenged by way of Constitutional petition ---Assessees before invoking the Constitutional jurisdiction of the High Court were required to exhaust all the remedies available to them under the Income Tax Ordinance, 1979---Assessee having not, availed the remedy by way of Reference Application under S.136 of the Income Tax Ordinance, 1979 were not competent to invoke the Constitutional jurisdiction of High Court- --Constitutional petition was dismissed in circumstances.

Chief Administrator of Auqaf v. Muhammad Ramzan and others PLD 1991 SC 102; Mumtaz Ahmed v. Assistant Commissioner and another PLD 1990 SC 1195; Al-Ahrarm Builders v. Income-tax Appellate Tribunal 1993 SCMR 29; Commissioner of Income-tax v. Hamdard Dawakhana (Waqf) PLD 1992 SC 847; Ibne Hasan v. Government of West Pakistan and others PLD 1972 Lah. 294; Mumtaz - Khan v. Chief Settlement and Rehabilitation Commissioner PLD 1966 SC 276; Commissioner of Income tax v. Messrs Electronic Industries Ltd. 1988 PTD 111; Syed Saghir Ahmed Naqvi, v. Province of Sindh and another 1996 SCMR 1165 and Abdul Wahab Khan v. Government of.Punjab and others PLD 1989 SC 508 rel.

Shabbir Ahmad v. Mst. Kabirun Nisa PLD 1975 SC 58; 1988 PTD 1014; (1955) 28 ITR 462; 1991 PTD 463; (1979) 39 Taxation 14; (1984) 145 ITR 24; 1987 PTD 500; 1988 PTD 111; 1991 PTD 385; Sh. Akhtar Ali v. Federation of Pakistan 1980 PTD 406; A. Habib Ahmed v. M.K. C. Scott PLD 1992 SC 353;' Adamjee Insurance Co. Ltd. v. Federation of Pakistan 1993 SCMR 1998; Nigina Silk Mills, Lyallpur v. Income-tax Officer PLD 1963 SC 622; Premier Cloth Mills, Lyallpur v. Sales Tax Officer Investigation 1.972 SCMR 257; Shabbir Ahmed v. Khairun Nisa PLD 1975 SC 58; Hussain Bhi v. Muhammad Din and others 1976 SCMR 395; Eastern Poultry Service v. Government of Pakistan 1993 PTD 1291; Messrs Pakistan Educational, Society v. Government of Pakistan 1993 PTD 804; Usmania Glass Sheet Factory v. Sales Tax Officer Chittagong 1971 PTD 1; Eruck Maneckji and others v. Income-tax Officer 1979 PTD 461; Hussain Sugar Mills Ltd. v. Government of Pakistan 1981 PTD 169; Edulji Dinshaw Ltd. v. Income-tax Officer 1990 PTD 155; Jullian Hoshang Dinshow Trust v. Income-tax Officer 1992 SCMR 250; Sh. Akhtar Ali v. Federation of Pakistan 1980 PTD 406; Butla Company v. Sales Tax Officer 1983 PTD 221; Badar Iqbal v. Provincial Assembly PLD 1983 Kar. 312; Controller of Customs v. S.M. Ahmed & Co. Pvt. Ltd. 1999 SCMR 183; Gatron Industries (Ltd.) v. Government of Pakistan and others 1999 SCMR- 1072; Murree Brewery Co. Ltd. v. Federation of Pakistan PLD 1972 SC 279; S.P., Lahore v, Muhammad Latif, ASC PLD 19$8 SC 387; Abdul Wahid Khan. v. Government of Punjab PLD 1989 SC 508; Sarwani and others v.. Government of Pakistan 1991 SCMR 1041; Agricultural Development Bank of Pakistan v. Imtiaz Ahmad Gul 1999 SCMR 650; Income-tax Officer v. Chappal Builders 1993 SCMR 1106; H. M. Abdullah v. I.T.O., Circle V and 2 others 1993 SCMR 1195 and Wealth Tax Officer and another v. Shaukat Afzal and 4 others 1993 SCMR 1810 distinguished.

(d) Constitution of Pakistan (1973)---

----Art.199---Remedies available under statute---Failure to avail ---Effect-- Where petitioner failed to avail remedies available. under any statute, he would have no locus standi to file a Constitutional petition in the High Court to challenge the legality and validity of the orders.

Mumtaz Ahmed v. Assistant Commissioner and another PLD 1990 SC 1195 rel.

(e) Constitution of Pakistan (1973)---

----Art.199---Invocation of Constitutional jurisdiction---Principles--If the party had availed the remedy in the ordinary law then it would continue to have recourse to other remedies provided in the framework of that law and exhaust all of those remedies---Petitioner could not abandon or bypass same without any valid or reasonable cause and file Constitutional petition challenging the same order.

Al-Ahrarm Builders v. Income-tax Appellate Tribunal 1993 SCMR 29 and Commissioner of Income-tax v. Hamdard Dawakhana (Waqf) PLD 1992 SC 847 rel.

(f) Constitution of Pakistan (1973)---

----Art.199---Income Tax Ordinance (XXXI of 1979), Preamble-- Negligence---Circumvention of law---Constitutional jurisdiction ---Scope-- Petitioners having acted negligently, carelessly and imprudently, would not be allowed to circumvent the law and Constitutional jurisdiction would not be exercised in their favour to .put stamp of legality on their act of circumvention of law and to negate or render redundant the provisions of the relevant law:

Ibne Hasan v. Government of West Pakistan and others PLD 1972 Lah. 294 and Mumtaz Khan v. Chief Settlement and Rehabilitation Commissioner PLD 1966 SC 276 rel.

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

----S.136---Reference to High Court---Validity of assessment which was set aside---Order of Appellate Tribunal setting aside assessment framed and remanding the case to the Assessing Officer for fresh assessment after further examination of the evidence and material and verification of the facts on record could not be challenged by way of Reference Application under S.136 of the Income Tax Ordinance, 1979.

Commissioner of Income-tax v. Messrs Electronic Industries Ltd. 1988 PTD 111 rel.

(h) Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Maintainability---Where a statute had not provided the remedy by way of appeal or reference against the order then the same could not be challenged by way of a Constitutional petition which would amount to rendering the provision of statute not providing an appeal or a Reference or any other remedy against a particular order as redudant.

Syed Saghir Ahmed Naqvi v. Province of Sindh and another 1996 SCMR 1165 and Abdul Wahab Khan v. Government of Punjab and others PLD 1989 SC 508 rel.

Muhammad Naseem for Petitioner for Respondent.

Date of Hearing: 9th April, 1999.

JUDGMENT

SAIYED SAEED ASHHAD, J. ---This Constitutional petition has been filed by the petitioners, who are brothers inter se, challenging the orders of the Income Tax Appellate Tribunal dated 27-6-1990 in I.T.As. Nos. 1075 to 1077/HQ of 1989-90 pertaining to the assessment years 1981-82, 82-83 and 1983-84 order dated 27-6-1990 in I.T.As. Nos. 3734 and 3735/KB of 1986-87 and 1154/HQ of 1989-90 relating to the assessment years 1984-85, 1985-86 and 1986-87, and order dated 27-6-1990 in I.T.As. -Nos. 1160 and 1161/HQ of 1989-90.

By order dated 27-6-1990 in I.T.As. Nos.1075 to 1077/HQ of 1989-90, the Appellate Tribunal confirmed the order of the Commissioner of Income Tax (Appeals) upholding the additions made by the Income-tax Officer to the declared income of the petitioners. These additions related to the 1 /4th share of each of the petitioners m the rent received in respect of the building known as Islam Plaza constructed on a portion of plot bearing Sheet No.RC-8, Survey No.9/2, Old Survey No.E-3/P.0.15, Custodian No.IV-A 254 situated at Hospital Road in the Ranchore Quarters, Karachi. The Income Tax Officer finalised the assessments of the petitioners relating to the income from the rent received from Islam Plaza during the aforesaid the three assessment years 1981-82, 1982-83 and 1983-84 under section 19 of the Income Tax Ordinance: The grievance of the petitioners is that the Income Tax Officer committed a grave mistake in finalising the assessments under section 19 of the Income Tax Ordinance and treating the petitioners as an Association of Persons instead of framing the assessments under section 21 of the Income Tax Ordinance. It will be pertinent to reproduce the details of the assessments finalised for the aforesaid three years, which are as under:

Assessment yearSection under whichDate of Finalisation finalised
981-82	Under section 62	26-6-1984
1982-83	Under section 59-A	26-5-1984
J 983-84	Under section 59(1)	8-12-1983

The contention raised on behalf of the petitioners in this Constitutional petition is that this illegality and/or mistake was due to inadvertence over-sight and as such was apparent on the face of the order and the record. Accordingly applications under section 156 of the Income Tax Ordinance was filed on 13-9-1982 on behalf of the petitioners before the Income Tax Officer praying that the mistake apparent on the record be rectified but the Income Tax Officer dismissed the same by his order dated 7-3-1988. Against this order the petitioners preferred appeals before the Commissioner of Income Tax (Appeals) under section 156 of the Income Tax Ordinance, who by his order dated 20-12-1989 dismissed all the aforesaid appeals of three assessment years holding that no mistake was apparent from the record and the Income Tax Officer was justified in rejecting the applications filed by the petitioners under section 156 of the Income Tax Ordinance. Against these orders the petitioners filed second appeals bearing I.T.A. Nos. 1075 to 1077/HQ of 1989-90 which were also dismissed as stated above. The petitioners neither moved reference application under the then section 136(1) of the Income Tax Ordinance before the Appellate Tribunal nor made application under section 136(2) of the Income Tax Ordinance in this Court and instead approached this Court by way of this Constitutional petition.

We have heard the arguments of M/s. Muhammad Naseem and Nasrullah Awan, learned counsel for the petitioners/assessee and the respondents/department respectively and have perused the material on record, relevant provisions of law as well as case-law related by Mr. Muhammad Naseem in support of his arguments.

Mr. Muhammad Naseem, submitted that the Income Tax Officer in finalising the assessments for the said three years under section 19 of the Income Tax Ordinance and treating the Petitioners as an Association of persons in respect of the income/rent received by them from the said Islam Plaza had committed a grave error and mistake as in view of section 19, of the Income Tax Ordinance, the petitioners could not have been treated as an Association of Persons in respect of the income/rent received by them from Islam Plaza as the respective share of each of the petitioners was definite and ascertainable and the petitioners should have been assessed under section 21 of the Income Tax Ordinance. He further submitted that the Income Tax Officer instead of finalising the assessments 'under section 21 framed the assessments under section 19. of the Income Tax Ordinance and such assessments would be deemed to be on account of over-sight and/or inadvertence would be inasmuch as had the Income Tax Officer referred to the provisions of section 21 of the Income Tax Ordinance he would not have in any case finalised the assessments under section 19 of the Income Tax Ordinance. He further submitted that this was a mistake or error apparent on the face of the order as well as from the record and was liable to be rectified under section 156 of the Income Tax Ordinance. He further submitted that the assessments framed by the Income Tax Officer were not only contrary to the provisions of section 21 of the Income Tax Ordinance but also violated the provision of section 45 of the Transfer of Property Act and thus were void ab initio. He further submitted that both the Commissioner of Income tax (Appeals) and the Appellate Tribunal erred in rejecting the appeals of the petitioners against the impugned assessments and confirming them. He, 'however, did not assign any reason as to why the petitioners did not resort to section 136 or filing Reference Applications, firstly before the Appellate Tribunal and thereafter in this Court.

Mr. Nasrullah Awan, on the other hand submitted that the petitioners did not approach this Court with clean hands inasmuch as they had not disclosed the true facts and had also twisted the facts in a manner to suit them with a view to make out a case for interference by this Court in the exercise .of its Constitutional jurisdiction when on account of negligence, carelessness and imprudence the petitioners did not report to the provisions of the then section 136 of the Income Tax Ordinance. Elaborating his arguments he submitted that it was absolutely wrong and without any substance that the Income Tax Officer had finalised the. assessments in disregard or in ignorance of the provisions of section 21 of the Income Tax Ordinance and a bare perusal of the assessment orders framed by the Income Tax Officer in all the aforesaid three assessment years would be sufficient to establish that he had finalised the assessment consciously, deliberately, with application of mind and had given plausible and cogent reasons for framing the assessments under section 19 of the Income Tax Ordinance and as such the assessments could not be said to be wrong or suffering from a "mistake or error apparent on the face of the order or the record so as to be rectifiable under section 156 of the Income Tax Ordinance. He further submitted that the assessments finalised for the assessment years 1981-82, 1982-83 and 1983-84 could have been challenged by way of appeals under section 129 of the Income Tax Ordinance within a period of 30 days of the date of service of notice for demand relating to the assessment years in dispute, but no such appeals were filed with the result that the assessments for the aforesaid three years attained finality and the petitioners in order to overcome the said legal disability devised a scheme to overcome the same and moved an application under section 156 of the Income Tax Ordinance, which could be filed within a period of four years from the date of order sought to be rectified/amended, but was not maintainable in view of the facts and the circumstances of the case and wrongly submitting therein that the impugned assessment orders suffered from mistakes or errors apparent on the face of the order or the record and praying for rectification. He further submitted that this procedure was resorted to by the petitioners with a view to circumvent and overcome the provisions of the section 130 of the Income Tax Ordinance by virtue of which the time for filing the appeal had come to an end and by moving a frivolous and baseless application under section 156 of the Income Tax Ordinance, tried to obtain fresh time for filing appeals against the original assessment which was an absolutely illegal, frivolous and fraudulent act committed with a view to render the provisions of the Income Tax Ordinance as redundant and nugatory.

We have thoroughly considered the arguments advanced by the learned counsel for the parties.

From a bare perusal of the impugned assessment orders it- is established beyond any doubt that the Income-tax Officer in finalizing the assessment had, taken into consideration as well the provisions of the law particularly the provisions of sections 12, 13, 19, & 21 of the Income Tax Ordinance. It is also to be admitted that the Income -tax Officer had framed the assessments consciously, deliberately and had given plausible and cogent reasons for arriving at the findings contained in the assessment orders. In circumstances it could not be said that the Income-tax Officer in framing the assessments had committed any illegality or -irregularity which could be said or error apparent record or the order so as to be of being rectified under 156 of the Income Tax Ordinance from the record and what are to be rectified tinder section of the Income Tax Ordinance, was considered by the Hon'ble Supreme Court in the case of Commissioner of Income-tax v. M/s. National Food Laboratories, reported in 1992 SCMR 687. In this case the Supreme Court after examining in detail the provisions of section 156 of the Income Tax Ordinance made the following observations:---

"Section 35 of the repeated Income-tax Act, 1922, hereinafter referred to as 'The Act' confers a power of -rectify any mistake in the order which is apparent from the record. Such power can be exercised Suo Motu or if it is brought to the notice by an assessee. Therefore, essential condition for exercise of such power is that the mistake should be apparent on the face of record; mistake which may be seen floating on the surface and does not require investigation or further evidence. The mistake should be so obvious that on mere reading the order it may immediately strike on the face of it. Where an officer exercising power under section 35 enters into the controversy, investigates into the matter, reassesses the evidence or takes into consideration additional evidence and on that basis interprets the provisions of law and forms an opinion different from the order, then it will not amount to 'rectification' of the order. Any mistake which is not patent and obvious on the record, cannot be termed to be an order which can be corrected by exercising power under section 35-: In this regard reference can be made to Shaikh Muhammad Iftikharul Haq v. Income-tax Officer, Bahawalpur PLD 1966 SC 524 and Pakistan River Steamer Limited v. Commissioner of Income-tax, 1971 PTD -204. In the present case the mistake pointed out by the petitioner was not of a nature to attract. section 35 and, therefore, the High Court has correctly answered the first question in the negative."

From the above observations of the Hon'ble Supreme Court, it is to be seen that a mistake or an error to be rectifiable under section 156 must be a mistake in the order which is apparent from the record, i.e., to say a finding which is absolutely contrary or in ignorance or in disregard of the evidence and material on record or a finding which could not have been arrived at on the basis of the material on record or a mistake or error which may be seen floating and it should be so obvious that on reading of the order surfaces on the face of it. The other requirement for a mistake or an error to be apparent from the record is that in exercising power under section 156 of the income Tax Ordinance the concerned assessing officer would not be required to undertake reappraisal of the evidence and interpretation of any provision of law for coming to a different opinion. If such an exercise was to be undertaken then it would not amount to rectification of the order and the concerned officer could not exercise power under section 156 of the Income Tax Ordinance for modifying and/or amending the finding or opinion expressed originally. From the above discussion we have no doubt in our mind that the petitioners had tried to circumvent the law to defeat/overcome the provisions of law whereby their right to challenge the assessments framed against them by way of an appeal before the Commissioner of Income-tax (Appeals) had extinguished on account of lapse of time. In order to overcome this hindrance they submitted an application under section 156 of the Income Tax Ordinance though the facts and the circumstances of the case did not permit filing of such application as the assessments framed by the Income Tax Officer did not suffer from any mistake or error which was apparent from the record and floated on the surface of the order which could warrant rectification under section 156. The assessing officer had given a finding consciously, deliberately and-knowingly after taking into consideration the relevant provision of law applicable to the facts and the circumstances of the case and as such the order could only be, modified, amended or set aside in exercise of the appellate powers. Both the Commissioner of Income-tax (Appeals) and the Appellate Tribunal had, therefore, rightly refused to interfere with the order of the Income. Tax Officer rejecting the application under section 156 of the Income Tax Ordinance and refusing to rectify the alleged mistake or error in the exercise of the power under section 156 of the Income Tax Ordinance as the finding which was labelled as an apparent mistake, or error was not on account of inadvertent or oversight.

The aforesaid order of the Tribunal in I.T.As. Nos. 1075 to 1077/HQ of 1989-90 was not challenged. by way of Reference applications under the then section 136 of the Income Tax Ordinance either before the Appellate Tribunal or before this Court and it, therefore, attained finality. Consequently, it could not be challenged by way of Constitutional petition as before invoking the Constitutional jurisdiction of this Court the petitioners were required to exhaust all the remedies available to them under the Income Tax Ordinance. In this connection we place reliance on the case of Chief Administrator of Auqaf v. Muhammad Ramzan and others reported in PLD 1991 SC 102. It is also an established principle of law that when the petitioner failed to avail himself of the remedies available to him under any statute he would have no locus standi to file a Constitutional petition in the High Court to challenge the legality and validity of the orders. In support of the above, reliance is placed on the case of Mumtaz Ahmed v. Assistant Commissioner and another reported in PLD 1990 SC 1195. It may also be mentioned that the principle governing invocation of Constitutional jurisdiction of this Court by a party is that if the party had availed of the remedy in the ordinary law then it would continue to have recourse t6 other remedies provided in the framework of that law and exhaust all of these remedies, he cannot abandon or bypass it without any valid or reasonable cause and file Constitutional petition challenging the same order. Such pronouncement was made by the Supreme Court in the case of Al-Ahrarm Builders v. Income-tax Appellate Tribunal, reported in 1993 SCMR 29. A similar observation was made by the Supreme Court in the case of Commissioner of Income Tax v. Hamdard Dawakhana (Waqf), reported in PLD 1992 SC 847. It may also be mentioned here that the petitioners on account of their negligence and carelessness had allowed the time provided under the then section 136 of the Income Tax Ordinance for filing Reference Applications before the Appellate Tribunal and this Court to lapse and they choose to challenge the impugned order by way of this Constitutional petition. The petitioners having acted negligibly, carelessly and imprudently would not be allowed to circumvent the law and Constitutional jurisdiction would not be exercised in their favour to put stamp of legality on their act of circumvention of law and to negate or render redundant the provisions of the Income Tax Ordinance. In the case of Ibne Hasan v. Government of West Pakistan and others reported in PLD 1972 Lah. 294, the party had invoked the Constitutional jurisdiction as it had failed to avail of the opportunity of filing the appeal within the period of limitation which was dismissed as barred by limitation. The Lahore High Court relying on the pronouncement made by the Supreme Court in the case of Mumtaz Khan v. Chief Settlement and Rehabilitation Commissioner (PLD 1966 SC 276) refused to admit the writ petition to grant the relief to the petitioner. In the present case the petitioners did not even avail of the remedy by way of Reference Applications available to them under the then section 136 of the Income Tax Ordinance and in view of the pronouncements made in the afore cited cases they would not be competent to invoke the Constitutional jurisdiction of this Court.

With regard to the order of the Tribunal dated 27-6-1990 in I.T.As. Nos.3734/KB and 3735/KB of 1986-87 and 1154/HQ of 1989-90 relating to the assessment years 1984-85,, 1985-86 and 1986-87, it is to be observed that the Tribunal had confirmed the order of the Commissioner of the Income-tax (Appeals) whereby the appeals filed by the department before the Commissioner of Income Tax pertaining to the assessment years 1984-85 and 1986-87 were remanded to the Income Tax Officer for deciding afresh the question of additions made under section 12(13) of the Income Tax Ordinance in the light of the order of the Tribunal relating to the interpretation of the section 12(13) of the Ordinance. The Tribunal vide its above order also allowed the appeal of the department relating to the assessment year 1985-86 and remanded the matter to the Income Tax Officer for deciding the same alongwith the assessments for the assessment years 1984-85 and 1986-87 inasmuch as in these appeals also the question of application of the provision of section 12(13) of the Income Tax Ordinance was involved. It is an established principle that the order of the Tribunal setting aside the assessment framed and remanding the case to the Income-tax Officer for fresh assessment after further examination of the evidence and material and verification of the facts on record could not be challenged by' way of Reference Applications under the then section 136 of the Income Tax Ordinance. If any authority is required in support of this proposition, the same is available from the judgment in the case of The Commissioner of Income-tax v. M/s. Electronic Industries Ltd., reported in 1988 PTD 111. It is also an established principle that where a statute does not provide the remedy by way of appeal or Reference against the order then the same cannot be challenged by way of a Constitutional petition as it would amount to rendering the provision of statute which does not provide an appeal for a reference or any other remedy against a particular order. In support of this proposition reliance is placed on the cases of Syed Saghir Ahmed Naqvi v. Province of Sindh and another reported in 1996 SCMR 1165 and Abdul Wahab Khan v. Government of Punjab and others, reported in PLD 1989 SC 508.

The learned advocate for the petitioners had given a long list of cases in support of his contentions, firstly, that the assessments in the assessment years 1981-82 to 1983-84 in the status of AOP were absolutely illegal; secondly, that on the basis of the admitted facts that Appellate Tribunal had no jurisdiction but to cancel the aforesaid assessment order; thirdly, that -the power of setting aside or remanding the matter to the Income Tax Tribunal for fresh assessment proceedings was to be exercised in extraordinary circumstances; and fourthly, that in the absence of the petitioners having remedy by way of Reference Application the only possible course open to them was to invoke the Constitutional jurisdiction of this Court. The cases referred to by the petitioners' counsel are as under:--

(1) Shabbir Ahmad v. Mst. Kabirun Nisa PLD 1975 SC 58; (2) 1988 PTD 1014 (Lahore High Court); (3) (1955) 28 ITR 462; (4) 1991 PTD 463; (5) (1979) 39 Taxation 14 (Lahore High Court), (6) (1984) 145 ITR 24; (7) 1987 PTD 500; (8) 1988 PTD 111; (9) 1991 PTD 385; (10) Sh. Akhtar Ali v. Federation of Pakistan 1980 PTD 406; (11) A. Habib Ahmed v. M.K.G. Scott PLD 1992 SC 353; (12) Adamjee Insurance Co. Ltd. v. Federation of Pakistan 1993 SCMR 1998; (13) Nigina Silk Mills, Lyallpur v. Income-tax Officer PLD 1963 SC 622; (14) Premier Cloth Mills, Lyallpur v. Sales Tax Officer Investigation 1972 SCMR 257; (15) Hussain Bhi v. Muhammad Din and others 1976 SCMR 395; (16) Eastern, Poultry Service v. Government of Pakistan 1993 PTD 1291; (17) M/s. Pakistan Educational Society v. Government of Pakistan 1993 PTD 804; (18) Usmania Glass Sheet Factory v. Sales Tax Officer, Chittagong 1971 PTD 1; (19) Eruck Maneckji and others v. Income-tax Officer 1979 PTD 461; (20) Hussain Sugar Mills Ltd. v. Government of Pakistan 1981 PTD 169; (21) Edulji Dinshaw Ltd. v. Income-tax Officer 1990 PTD 155; (22) Jullian Hoshang Dinshaw Trust v. Income-tax Officer 1992 SCMR 250; (23) Sh. Akhtar Ali v. Federation of Pakistan 1980 PTD 406; (24) Butla Company v. Sales Tax Officer 1983 PTD 221; (25) Badar Iqbal v. Provincial Assembly PLD 1983 Kar. 312; (26) Controller of Customs v. S.M. Ahmed & Co. Pvt. Ltd. 1999 .SCMR 183; (27) Gatron Industries (Ltd.) v. Government of Pakistan and others (March 1999 issue) 1999 SCMR 1072; (28) Murree Brewery Co. Ltd. v. Federation of Pakistan PLD 1972 SC 279; (29) S. P., Lahore v. Muhammad Latif, ASC PLD 1988 SC 387; (30) Abdul Wahid Khan v. Government of Punjab PLD 1989 SC 508; (31) Sarwani and others v. Government of Pakistan 1991 SCMR 1041; (32) Agricultural Development Bank of Pakistan v. Imtiaz Ahmed Gul 1999 SCMR 650; (33) Income-tax Officer v. Chappal Builders 1993 SCMR 1106; (34) H. M. Abdullah v. I.T.O. Circle V and 2 others 1993 SCMR 1195 and (35) Wealth Tax Officer and another v. Shaukat Afzal and 4 others 1993 SCMR 1810.

The afore-cited cases are of no help and assistance to the petitioners in satisfying us with regard to the maintainability of this Constitutional petition as none of them deal with the question of maintainability of a Constitutional petition in the peculiar circumstances of this case. The case-law relied upon by the counsel for the petitioners relates to the issues and questions which could have been examined and considered only if the maintainability of this petition was made out and only then the said - case-law could have any application and be of any assistance.

Upon the above discussions we find that this Constitutional petition is misconceived and not maintainable. Accordingly, it stands dismissed.

C.M.A./M.A.K./I-68/KPetition dismissed