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

----S.65---Constitution of Pakistan (1973), Art. 199---Constitutional petition- Additional assessment---Show-cause notice---Constitutional petition and parawise comments showed factual controversy---Department alleged in its parawise comments that assessee had concealed the material facts which were subsequently discovered by the Assessing Officer---Contents of parawise comments clearly revealed the concealment of material facts by the assessees---Ingredients of assuming jurisdiction by Assessing Officer prima facie existed in circumstances ---Assessee was well within his right to raise all legal and factual pleas before the Assessing Officer by filing a reply, who was duty bound to consider the same and pass speaking order including that of assuming of jurisdiction---Assessing Officer was directed by High Court to decide the case on merits in accordance with law without being influenced by the observations of the High Court.

1993 SCMR 493; 1993 SCMR 29; 1993 SCMR 96; 1993 SCMR 1108; Muhammad Younas' case 1993 SCMR 618, PLD 1989 SC 360; M/s. Bashir & Company's case 1968 SCMR 997 and Abdul Rehman Mayet's case 1988 SCMR 1712 rel.

1990 PTD 155: 1993 PTD 766; 1993 PTD 1108, PLD 1971 SC 305; Nagina Silk Mill's case PLD 1963 SC 322, 1981 PTD 169; 1992 PTD 1.671 and 1992 PTD 1 distinguished.

Nagina Silk Mill's case PLD 1963 SC 322; .PLD 1965 SC 161; PLD 1989 SC 360 and 1977 ITR 268 ref.

(b) Constitution of Pakistan (1973)---

----Art.199---Income Tax Ordinance (XXXI of 1979), Preamble-- Constitutional jurisdiction of High Court---Constitutional petition and parawise comments put in a juxtaposition, could not be resolved in Constitutional jurisdiction of High Court.

Muhammad Younas' case 1993 SCMR 618 rel.

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

----S.65---Constitution of Pakistan (1973), Art.199---Show-cause notice-- Constitutional petition---Maintainability---Constitutional petition was not maintainable qua the show-cause notice.

1990 PTD 155; 1993 PTD 766; 1993 SCMR 493; 1993 SCMR 29; 1993 SCMR 96; 1993 SCMR 1108 and PLD 1989 SC 360 rel.

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

----S.65---Constitution of Pakistan (1973), Art. 199---Show-cause notice-- Constitutional petition ---Maintainability---Assessee could not be allowed to bypass jurisdiction vested by law in Special Tribunal and Constitutional petition could not be invoked in such matters.

Messrs Bashir & Company's case 1968 SCMR 997 and Abdul Rehman Mayet's case. 1988 SCMR 1712 rel.

Syed Abrar Hussain Naqvi for Petitioner.

Muhammad Ilyas Khan, Legal Advisor for Respondent.

Date of hearing: 3rd November, 1999.

JUDGMENT

I intend to decide W.P. No.10111 of 1999; W.P. No.10112 of 1999; W.P. No.10113 of 1999 and W.P. No.10114 of 1999, by one consolidated judgment having similar facts and law.

2. T e brief facts giving rise to these writ petitions are that the petitioner is assessee; submitted his income-tax return for the year 1993-94 which was not accepted by the Department and, finally Tribunal accepted the appeal of the petitioner vide judgment, dated 25-6-1998. Similarly his appeal were accepted by the Commissioner Income Tax regarding the assessment order qua the income-tax returns for the years 1995-96; 1996-97 and 1997-98 in favour of petitioner on 20-5-1999. The Commissioner Income Tax Appeals dismissed the appeal of the Petitioner regarding the income return for the year 1998-99 on 20-5-1999. The respondent on the basis of the acceptance of appeal of the petitioner by the Tribunal on 25-6-1999, the Commissioner Income Tax Appeals on 20-5-1999 respondent has to refund Rs.5,49,76,114 but, the respondent instead of accepting the aforesaid order in letter and spirit mala fidely issued notice to the petitioner under section 65 of I.T.O. on 28-5-1999. The notice does not reveal at all regarding any new definite information received by the Income-tax Officer as is evident from the notice, dated 28-5-1999 which reveals escaped assessment and being under assessed.

2. Learned counsel for the petitioner stated that both the clauses are destructive of each other either the petitioner has escaped assessment or being under assessed. The notice does not contain any fresh material, therefore Income-tax Officer has no jurisdiction to re-open the matter on account of change of opinion regarding the provisions of law as the matter has already been settled up to the level of Appellate Tribunal and the respondents failed to challenge the order of Appellate Tribunal before any higher forum, therefore, same is final between the parties. He relied upon the, foil win judgments:---

(1990) PTD SC 155), (1993 PTD 766) and 1993 PTD 1108

On the basis of the aforesaid judgments, the petitioner's counsel stated that Income-tax Officer has no definite direct information and .the Income-tax Officer wanted to get benefit of his own misdeeds; that the petitioner supplied ail the information while submitting the return before therefore,, I.T.O. has no jurisdiction to re-open the matter. It is further stated that petitioner has no other alternative remedy and the writ maintainable as the law laid down by the superior Courts in the following judgments:---

(1990 PTD -SC 155), (1993 PTD 766), (1993 PTD (SC) 1108), (PLD 1971 SC 305), (PLD 1963 SC 322), (1981 PTD 169), (1992 PTD 1671) and (1992 PTD 1).:

On the basis of the aforesaid judgment petitioner's counsel stated that even during the pendency of writ petition, the assessment order has been passed by I.T.O., even then, the Hon'ble Supreme Court entertained the writ petition and set aside the notice issued 6y I:T.O. under section 65 of Income Tax Ordinance.

3. The respondent's Legal Advisor stated that petitioner has not submitted complete information alongwith his returns and the respondent was justified to re-open the matter, after obtaining fresh information as is evident from para.6. of the report and parawise comments; he urged that respondent has not passed any final order against the petitioner only notice under section 65 of I.T.O. was issued, therefore, writ petition is not maintainable. He relied upon the following judgments:---

(1993 SCMR 493) (PLD 1963 SC 322), (PLD 1965 SC 161), (PLD 1989 -SC 360), (1993 SCMR 29); (1993 SCMR 96) and (1993 SCMR 1108).

He further urged that this Court has no jurisdiction to decide the disputed question of facts in Constitutional jurisdiction; that appeal of the petitioner is still pending adjudication regarding the same subject-matter before the appellate tribunal.

In rebuttal, the petitioner's counsel stated that leave granting order has been withdrawn by the Hon'ble Supreme Court in (1993 SCMR 1108); he further stated that the aforesaid leave granting order passed in favour of Income Tax Department after considering the cases, the Hon'ble Supreme Court has recalled his leave granting order; that matter has been finally decide up to the level of Tribunal. The Indian High Court in a similar circumstances (1977 ITR 268) has entertained the writ petition. He further stated that the matter before the Income-tax Officer is not similar. He further urged that the writ petitions are maintainable as the principle laid down in Nagina Silk Mills' case (PLD 1963 SC 322) and it still holds the field: This case was considered in all the subsequent judgments but this view was, not changed by the Hon'ble Supreme Court.

4. I have given my anxious consideration to the contentions of learned counsel for the parties and perused the record. It is admitted fact that the petitioner has challenged the vires of notice, dated 28-5-1999 on the ground that the notice does not reveal at all that the respondent has definite information that the petitioner concealed material facts from the respondent at the time of submitting income returns for the years in question. The matter has been finally adjudicated up to the level of appellate tribunal, therefore, the same is past arid closed transaction; whereas the respondent has taken different stand while submitting reply of para.6 of writ petition that the respondent has now come into possession of an evidence whereby it is established that M/s. National Fertilizer Marketing Ltd. has been selling on behalf of the producing units acting as a dependent agent of all these units, therefore, actual supplies do not constitute to it but to the network of fertilizer dealers/ stockiest. On such supplies tax under section 50(4) was not deductible as the real purchases did not enjoy the status of Limited Companies. Similarly in reply of para.8, the respondent. submitted that the petitioner did not disclose true nature of its sales as the petitioner is one of the Fertilizer manufacturing units owned by National Fertilizer Corporation and sale of entire products are managed by N.F.M.L. directly to the stockiest on behalf of petitioner. The relationship of buyer and, seller, therefore, did not exist between the petitioner and N-.F.M.L. rather it was that of a principal and agent. In reply of para.9 the respondent stated that assessment already completed and decided in appeal have now been re opened under section 65 on the basis of definite information which was not on records at the time of earlier assessment. The nature of controversy between, the parties to the petition by itself falls in the area of factual controversy. In case the contents of writ petitions and parawise comments are, put in juxta position which cannot be resolved in Constitutional jurisdiction of High Court. I am fortified by Muhammad Younas' case (1993 SCMR 618). It is consistent view of the Hon'ble Supreme Court that in case where factual controversy is involved, Constitutional petition is not proper remedy. The petitioner allegedly concealed the material facts while submitting the assessment returns in question which were subsequently discovered by the respondent as is envisaged by report and parawise comments filed by respondent. It is settled proposition of law that each and every case is to be decided on its own peculiar circumstances and facts. The citation cited by the petitioner's counsel are distinguished on facts and law. In the cited cases the concealment committed by the assessee were not borne out from the parawise comments of respondent; whereas in the present case contents of parawise comments clearly revealed the concealing of material facts by the assessee. In view of the aforesaid circumstances, the ingredients of assuming jurisdiction by respondent prima facie existed. It is also settled proposition of law that writ petition is not maintainable qua the show-cause notice. I am fortified by the following judgments:---

(1993 SCMR 493) (1993 SCMR 29), (1993 SCMR 96), (1993 SCMR 1108) and (PLD 1989 SC 360).

It is pertinent to mention here that judgments relied by the petitioner's counsel was considered in the aforesaid judgments i.e., (1990 PTD (SC) 155); (1993 PTD 766). The Hon'ble Supreme Court has deviated/departed from the aforesaid principle and laid down the principle that writ petition is not maintainable against the show-cause notice. Following the Rule laid down in the aforesaid judgments of Hon'ble Supreme Court and also keeping in view the facts that controversial issue regarding factual inquiry are involved. I am of the view that the petitioner if so advised in the first instance, may raise all the objections to the jurisdiction of respondent and also against the maintainability of the proceedings or issuance of notice under section 65 of I.T.O. 1979 before respondent, who will decide the same as primary. step after giving opportunity of hearing to the petitioner in accordance with law on its merits and keeping in view the observation mentioned in the aforesaid judgments of the Hon'ble Supreme Court. Even otherwise writ petition is not maintainable in view of the law laid down by the Hon'ble Supreme Court in M/s. Bashir & Company's case (1968 SCMR 997) in which it was held that a party cannot be allowed to bypass jurisdiction vested by the law in special tribunal, and writ petition cannot be invoked, special remedy is available under the Income Tax Ordinance. I am fortified by the judgments of Abdul Rehman Mayet's case (1988 SCMR 1712),

The petitioner is well within his right to raise all legal and factual pleas before the respondent by filing a reply, who is duty bound to consider' the same and pass speaking order including assuming of jurisdiction. Since the case was argued, at length and various questions of law were raised, therefore, the same had to be resolved but it is clarified for all the concerned that the order rendered and the case is not to be considered as expression of any opinion on the merits of the case which shall be decided in accordance with law by respondent without being influenced in any manner by the above observation of this judgment meaning thereby respondent has to decide the same without influenced by the aforesaid observation.

The aforesaid writ petitions are disposed of in the aforesaid terms.

C.M.A./P-84/L Order accordingly.