Income Tax Ordinance (XXXI of 1979)---

----S.65---Constitution of Pakistan (1973), Art. 199---Constitutional petition-- Notice-; -Assessee challenged issuance of notice under S.65, Income Tax Ordinance, 1979 by way of Constitutional petition on the ground that Assessing Officer had no jurisdiction to issue the notice as pre-conditions of S.65, Income Tax Ordinance, 1979 were not in existence ---Validity-- Objection of jurisdiction and validity of notice could be raised before the concerned Assessing Officer who would hear the assessee and decide same as a preliminary step before proceeding on merits or to make any assessment ---Assessee would avail the remedy in the hierarchy of jurisdiction under the Income Tax Ordinance, 1979 in case he was not satisfied with the decision of Assessing Officer.

Ahmad Saeed Kirmani for Petitioner.

Mian Subah Sadiq Klasson for Respondents.

Date of hearing: 4th November, 1999.

JUDGMENT

This order will dispose of Writ Petition No. 11688 of .1999.

2. Case set up in the petition is that petitioner is assessee of Income tax, return of Income-tax claiming. immunity from assessment for the year 1994-95 was filed, formalities provided in C.B.R.s' Circular No.8 of 1994 were fulfilled, petitioner was informed that the case for assessment had been taken up for normal assessment in pursuance of para. No.4(ii) of Circular No.9 of 1984 with the approval of Regional Commissioner of Income tax/Wealth Tax and that selection of the petitioner's case was mala fide and unjustified. It is claimed that no show-cause notice was issued. The Assessing Officer and IAC, after holding necessary inquiry, submitted report to the Commissioner of Income-tax, Zone-B, as to the wrong selection of case under para. No.4(ii) and para. No.1(i) of C.B.R.s' Circular No.9 of 1994. The Commissioner of Income-tax, after considering the facts, reported by the officer concerned, sent a written request to the Regional Commissioner of Income-tax vide letter dated 26-6-1997 for deletion of the case under the normal law and acceptance of return under SAS. The Regional Commissioner Income-tax vide letter dated 30-6-1997 agreed with the proposal of the Commissioner of Income-tax, Zone-B and directed the Commissioner, Income Tax, Zone-B for deletion of the case, provided there was no evidence of concealment in any form. It is claimed that after due consideration of the facts, the assessment was completed.

3. Grievance voiced in this petition is that the Assistant Commissioner of Income-tax again issued notice dated 18-8-1997, purportedly under section 65 of the Income Tax Ordinance, 1979 on the basis of conjectures and surmises. It is alleged that the Inspecting Additional Commissioner of Income-tax Range-2 was approached and requested to confront the allegation of concealment before inquiry proceedings under section 65 but no lawful course has been adopted. Learned counsel for the petitioner submitted that question of jurisdiction has been raised before the officer concerned and the Authority to re-open the case has been challenged but respondents are not prepared to attend to the question of jurisdiction or the validity of proceedings under section 65 of the Income Tax Ordinance and instead, they are determined to re-open the case.

4. Learned counsel for the respondents submitted that the petitioner can raise the objection of jurisdiction and validity of notice under section 65 of the Income-tax Ordinance, before the officer concerned, who will, of course, attend to the same and decide it as preliminary step, in accordance with law and that the petitioner will have an alternate remedy against the order in the hierarchy of jurisdiction.

5. From the facts noted supra, and also as noted in the writ petition, it is obvious that the petitioner challenges the issuance of notice under section 65 of the Income Tax Ordinance and maintains that there is no jurisdiction to either issue the notice or re-open the matter, particularly when pre-conditions of section 65 are non-existent. This being so, petitioner shall raise the objection of jurisdiction and validity of notice before the officer concerned who will hear the petitioner and decide it as a preliminary step, before proceeding on merit or making any assessment. It is expected that the concerned officer will decide the objection fairly, justly, independently, honestly and strictly in accordance with law, being uninfluenced by any extraneous consideration. In case, the petitioner is not satisfied with the order, it can avail the remedy in .the hierarchy of jurisdiction under the Ordinance-. With these observation, writ petition is disposed of.

C.M.A./M.A.K./L-51/L Order accordingly.