Wealth Tax Act (XV of 1963)---

----S. 5(1)(i), Second Sched., Part 1, cls.22 & 23---Constitution of Pakistan (1973), Art. 199---Constitutional petition ---Maintainability---Exemption-- Property held under trust or other legal obligation for any public purpose of a charitable or religious nature ---Taxability---Assessee was a Society registered under the Societies Registration Act, 1860 having the object of promotion of science, profession and practice of engineering ---Assessee rented out its building to a private person---Assessing Officer assessed the said building under Wealth Tax Act, 1963---Assessee contended that it was entitled to exemption under S.5(I)(i) read with c1.22, Second Sched. of the Wealth Tax Act, 1963 as the assessee was a charitable institution---First Appellate Authority set aside the assessment and case was remanded for de novo decision ---Assessee challenging order in Constitutional petition before High Court---Propriety---Assessee did not produce any material on record before the High Court to show that the building of the assessee was held under trust or other legal obligation for any public purpose of a charitable or religious nature---Question as to whether the property/assets of the assessee rented out would enjoy the immunity from pay-ability of tax by considering the same to be for a public purpose of charitable nature was a question of fact ---Assessee was to show the Appellate Authority by producing necessary evidence/material that as a matter of fact the building and the income derived from same were held under trust or for any other legal obligation for a public purpose of a charitable nature---High Court under its Constitutional jurisdiction under Art. 199 of the Constitution was not expected to undertake such an exercise in the ordinary course of things---Constitutional petition was dismissed in limine in circumstances leaving the assessee to avail the alternate remedies.

Samaritan Society v. Commissioner of Income-tax 1998 PTD 104, Thiargarajar Charities v. Additional Commissioner of Income-tax and another 1998 PTD 131; Commissioner of Income-tax v. Orissa Hauseware Trading Corporation 1995 PTD Note 10 at p. 12; Edu1ji Dinshaw Limited v Income-tax Officer PLD 1990 SC 399; Naseer A. Sheikh and 4 others v. The Commissioner of Income-tax (Investigation), Lahore and others PLD 1992 SC 276; Fauji Foundation v. Central Board of Revenue and others 1987 MLD 106; Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another PLD 1975 SC 450; Messrs S.A. Haroon and others v. The Collector of Customs, and another PLD 1959 SC 177; Lt.-Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and others PLD 1961 SC 119; The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan and 2 others PLD 1972 SC 279; Nagina Dal Factory v. Income-tax Officer and another (1968) 18 Tax 1 (SC), Raja Habib Ahmad Khan v. Income-tax Officer 1972 SCMR 96 and Al- Ahram Builders (Pvt.) Ltd. v. Income-tax Appellate Tribunal 1993 SCMR 29 ref.

Garton (Industries) Limited v. Government of Pakistan and others 1999 SCMR 1072; Collector of Customs, Customs House, Lahore and ' others v. Messrs S.M. Ahmad & Company (Pvt.) Limited, Islamabad 1999 SCMR 138 and Messrs Julian Hoshang Dinshaw Trust and others v. Income Tax Officer, Circle XVIII, South Zone, Karachi and others 1992 SCMR 250 eel.

A. K. Dogar for Petitioner.

Shafaqat Mehmood Chohan for Respondent.,

Date of hearing: 20th August, 1999.

JUDGMENT

The petitioner is a society registered under the Societies Registration Act, 1860. It was established in 1912. The following were its objectives:---

(i) To promote science, profession and practice of engineering.

(ii) To afford its members opportunities for meeting periodically, to discuss, propagate and pursue matters of professional interest.

(iii) To have, a Code of Ethics which shall govern the professional conduct of its members.

It was further provided in para. 3 of the Memorandum that the income and property of the Congress when-so-ever derived shall be applied solely towards the promotion of the objectives of the Congress as set out in its Memorandum of Association and no portion thereof shall be paid or transferred or distributed directly or indirectly by way of dividend, bonus or interest or otherwise to the members of the Congress. The building known as Pakistan Engineering Council Building, Liberty Chowk, Gulberg, Lahore, owned by the petitioner was assessed to the wealth tax by the impugned orders dated 1.7-4-1999 and 21-5-1998 by the Special Officer of the Wealth Tax Circle, Companies Zone-II Lahore.

2. The learned counsel for the petitioner argued that the petitioner was entitled to the exemption provided by subsection (1) of section 5 read with item No.22 of Schedule Second of .the Wealth Tax Act, 1963 as them petitioner was a charitable institution established with the object of promotion of science, profession and practice of engineering. The mere fact that the petitioner had rented out the building to private persons did not mean that the income derived from the rents and the assets would become amendable to the wealth tax as the dominant purpose of the property of petitioner remained intact. Reliance was placed on the cases of Samaritan Society v. Commissioner of Income Tax (1998 PTD 104) (Supreme Court of India), Thiargarajar Charities v. Additional Commissioner of Income Tax and another (1998 PTD 131) (Supreme Court of India) and Commissioner of Income-Tax v. Orisa House Ware Trading Corporation (1995 PTD Note 10 page 12 (D.B.) (Orisa). The learned counsel further submitted that the exemption had been granted by the provision of law. There was no need to file the statutory appeal before the appellate authority under the Wealth Tax Act against the impugned orders passed by the Assessing Officer and that the writ petition was competent. The learned counsel relied on the cases of Edulii Dinshaw Limited v. Income-tax Officer (PL.D 1990 SC 399), Naseer A. Sheikh and 4 others v. The Commissioner of Income Tax (Investigation), Lahore and others (PLD 1992 SC 276), Fauji Foundation v. Central Board of Revenue and others 1987 MLD 106; Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another (PLD 1975 SC 450), Messrs S.A. Haroon and others v. The Collector of Customs, and the Federation of Pakistan (PLD 1959 SC 177), Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and others (PLD 1961 SC 1191 and The Murree Brewery Co. Ltd, v. Pakistan through the Secretary to Government of Pakistan, Workers and 2 others (PLD 1972 SC 279).

3. On the other hand, the learned counsel for the respondent argued that in the earlier round of litigation an assessment order had been passed against the petitioner. An appeal filed by the petitioner was accepted by the Commissioner of Wealth Tax (Appeals) vide order dated 21-8-1995. The assessment order was set aside and the case was remanded to the Assessing Officer for a de novo decision. The question as to whether the petitioner's case was covered by the exemption available under Item No.22 of the Second Schedule of the Act could not be decided merely by the objectives of the petitioner as contained in the Memorandum of Association. There was no 'material on record before this Court to show that the building of the petitioner was held by the petitioner under trust or other legal obligation for any public purpose of a charitable or religious nature. The learned counsel emphasised that the remedy of appeal as provided by section 23 of the Act was adequate to determine controversies of fact as there was no cavil with the legal provisions. Reliance was placed on Nagina Dal Factory v. Income-tax Officer and another (1968) 1E Tax 1) (SC), Raja Habib Ahmad Khan v. Income-tax Officer (1972 SCMR 96) and Al-Ahram Builders (Pvt.) Ltd. v. Income-tax Appellate Tribunal (1993 SCMR 29) in support of the contention that the writ jurisdiction was not attracted in the presence of an adequate remedy of statutory appeal.

4. I have heard the learned counsel for the parties at length. The petitioner had successfully availed the remedy of appeal under section 23 of the Wealth Tax Act, 1963, in the earlier round of limitation whereby the assessment order was set aside and the case was remanded for a de novo decision. The learned counsel failed to satisfy as to why the petitioner could not seek the requisite relief from the appellate authority if an appeal was filed against the impugned orders of assessment of the Wealth Tax. Undoubtedly, as held in the-case of Garton (Industries) Limited v. Government of Pakistan and others (1999 SCMR 1072), the rule that invoking the Constitutional jurisdiction was possible only after exhausting all other remedies, was a rule of practice, convenience and discretion by which the Court regulated its proceedings. It was not a rule of law affecting the jurisdiction of this Court conferred by Article 199 of the Constitution of Islamic Republic of Pakistan. A Constitutional petition is competent if an order is passed by a Court or authority by exceeding its jurisdiction even if the remedy of appeal/revision against such order is available depending upon the facts and circumstances of each case. A somewhat similar view was taken in the case of Collector of Customs, Customs House, Lahore and 3 others v. Messrs S.M. Ahmad & Company (Pvt.) Limited, Islamabad (1999 SCMR 138).

In the present case, the exemption from pay ability of the Wealth Tax was claimed with reference in its Memorandum of Association. By virtue of item 22 of Part I of the Second Schedule to the Act, a wealth tax shall not be payable by an assessee in respect of the assets and such assets shall not be included in the net wealth of the assessee in respect of any property held by him under trust or other legal obligations for any public purpose of a charitable or religious nature in Pakistan. It would be a question of fact to be determined whether the property/assets of the petitioner rented out to private persons would enjoy the immunity from payability of tax by considering the same to be for a public purpose of charitable nature.

6. A similar question was considered by the Hon'ble Supreme Court of Pakistan in the case of Messrs Julian Hoshan Dinshaw Trust and others v. Income-Tax Officer, Circle XVIII, South Zone, Karachi and others (1992 SCMR 250). In the precedent case, impunity from payability of income tax on the income received by another person was claimed with reference to the Memorandum of Association. It was held that Memorandum of Association of Company was not the sole test of adjudging the commercial nature of the transaction carried on by a company. It merely specified the functions which could lawfully be undertaken by a company. It would be for the petitioner society, to show to the appellate authority by producing necessary evidence/material that as a matter of fact the P. E. C. Building and the income i derived from it were held under the trust or any other legal obligation for a public purpose of a charitable nature. This Court is not expected to undertake such an- exercise in the ordinary course of things. No mala fides or any other patent errors going to the root of the matter/or jurisdiction of the assessing authority was pointed out by the learned counsel for the petitioner which entitled the petitioner to invoke the Constitution jurisdiction of this Court by passing the normal remedy of appeal in the facts and circumstances of this case.

7. For the foregoing reasons, this writ petition in not maintainable being premature and is dismissed in limine leaving the petitioner to avail to alternate remedies.

C.M.A./M.A.K./P-4/L Petition dismissed