ANWAR BEGUM VS COMMISSIONER OF INCOMETAX/WEALTH TAX, ZONE B, LAHORE, 2000 PTD-LAHORE-HIGH-COURT-LAHORE 864 (1999)

(a) Wealth Tax Act (XV of 1963)---

----Ss.17, 16, 14 & 25---Constitution of Pakistan (1973), Art.199-- - Constitutional petition---Wealth escaping assessment---Notices under S.17 of Wealth Tax Act, 1963 were issued for submission ofwealth tax returns which we not complied with---Notices under Ss.14(2), 16(4), 16(2) and show-cause notice under S.16(3) of Wealth Tax Act, 1963 were later on else issued ---Assessee attended the office and sought adjournment which was granted ---Assessee, on adjourned date again sought adjournment which was not granted by the Assessing Officer and assessments were finalized under S.16(5) of Wealth Tax Act, 1963---Relief was granted by the Commissioner of Wealth Tax on revision---Assessee filed Constitutional petition and contended that assessment order was passed withoutproviding personal hearing as adjournment was not granted ---Assessee also challenged the service of notice under S.14, jurisdiction of Assistant Commissioner and issuance of show-cause notice under S.16(3) instead of 164) of Wealth Tax Act, 1963---Validity---Assessee appeared before Assessing officer but 'I'd not file reply of show-cause notice and request was made for another adjournment which was not granted, assessee, thus, failed to file reply of the show-cause notice within time in spite of providing opportunity-- -Nobody should be allowed to get benefit of his own misdeeds---Petition was dismissed in circumstances.

1990 PTD 389; 1995 PTD 393 and 14 ITR 548 ref.

Raja Muhammad Fazal's case PLD 1975 SC 331; Wali Muhammad's case PLD 1974 SC 106; Tufail Muhammad's case PLD 1965 SC 269; Sardar Pritam Singh's case (1985) 154 ITR 133; Rama Waters' case 1991 PTD 272; Muhammad Afzal's case PLD 1995 Quetta 50 and Sayed Muhammad Arif Ali's case 1969 SCMR 239 rel.

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

----Art.199---Constitutional jurisdiction of High Court---Scope---High Court had no jurisdiction to substitute its own decision in place of the decision of the Tribunal below.

Mussaduq's case PLD 1973 Lah. 600 rel.

(c) Wealth Tax Act (XV of 1963)---

----Ss.l7, 16 & 25---Constitution of Pakistan (1973), Art.199-- Constitutiotial petition---Wealth escaping assessment---Revision---Assesses, did not attach grounds of revision alongwith Constitutional petition-- Contention of revenue was that assessee failed to attach grounds of revision alongwith the Constitutional petition and the revisional order revealed that assessee did not raise all those grounds which were raised before the High Court ---Validity---Assessee having not raised such grounds before revisional authority, concealed the material facts from the High Court---High Court declined to exercise discretionary jurisdiction under Art.199 of the Constitution in favour of assessee on the basis of principle that he who seeks equity must come with clean hands.

1969 SCMR 141; PLD 1973 SC 236; 1998 SCMR 1462; 1990 CLC 1783 and 1983 SCMR 196 rel.

M. Shahid Abbas and Amir Umer Khan for Appellant.

Shafqat Mahmood Chohan for Respondent.

Date of hearing: 2nd December, 1999.

JUDGMENT

I intend to decide the Writ Petition Nos. 14714 of 1999, 1475 of 1999 and 14716 of 1999 by one consolidated judgment having similar facts and law.

2. Brief facts out of which the present writ petitions arise are that the petitioner submitted his income tax returns for the years 1995-96, 1996-97 and 1997-98. The assessee has not filed wealth tax return for any of the years under reference. The Assistant Commissioner of Income Tax/Wealth Tax, Circle 5 Zone-B, Lahore sent notice to the assessee under section 17 on 19-6-1998 for 26-6-1998 for the assessment years 1995-96 and 1996-97. The assessee in spite of the notice issued by the Assistant Commissioner did not file wealth tax return for any of the years under reference. The Assistant Commissioner of Wealth Tax also sent notice to the petitioner under section 14(2) for the assessment year 1997-98. Subsequently, the Assistant Commissioner also issued notice under section 16(4) on 11-8-1998 for 7-9-1998. Thereafter, another notice under section 16(2) for these years and show-cause notice under section 16(3) was issued for compliance on 10-10-1998. The representative of the petitioner Mr: Amir Umar Khan entered appearance but he did not file reply of the show-cause notice and request was made for adjournment which was granted by the Assessment Officer. The case was, adjourned for 17-11-1998. The representative of the petitioner entered appearance before him on 17-10-1998 but he did not file reply of the show-cause notice and requested another adjournment but the Assessment Officer did not grant the adjournment and passed the assessment order against the petitioner under section 16(5) of the Wealth Tax Act, 1963 on 17-10-1998. Petitioner being aggrieved filed revision before the Commissioner of Income Tax/Wealth Tax under section 25 of the Wealth Tax Act, 1963 who modified the assessment order to the extent that the Assessing Officer in the absence of any evidence disallowed the claim of self occupied first floor. Since the claim of self-occupation is valid and established. The same is to be allowed but upheld the assessment order qua the other items. Hence the present writ petition.

3. Learned counsel for the petitioner contended that the basic assessment order is passed against the petitioner without providing personal hearing as is evident from the assessment order that the representative of the petitioner requested adjournment which was not granted. He further stated that service of the notice under section 14 was not effected upon the petitioner but both the Tribunals below did not advert to this aspect of the case. Therefore, assessment order passed by the Assessing Officer is without lawful authority. He further urged that the Assistant Commissioner not the Deputy Commissioner by virtue of section 2(10) of the Wealth Tax Act, 1963. Therefore, assessment order is passed by an incompetent officer who has no jurisdiction to pass the order against the petitioner. The Assessing Officer failed to issue show-cause notice to the petitioner under section 16(4) of the Wealth Tax Act, 1963 as is evident from the show-cause notice that he issued the show-cause notice to the petitioner under section 16(3). He further stated that Tribunals below have wrongly determined the liability of the petitioner without applying their mind. He further stated that Tribunals below passed the order against the petitioner in violation of the mandatory provisions of the Wealth Tax Act and Rules framed thereunder and in violation ref the law- laid down by the superior Courts. He relied upon 1990 PTD 389, 1995 PTD 393 and 14 ITR 548.

4. Learned Legal Advisor of the respondents contended that petitioner was provided maximum opportunities to file reply of the show-cause notice but the petitioner failed to avail remedies. The Assessing Officer has no other option except to pass assessment order against the petitioner. He further stated- that the Assistant Commissioner is competent to pass assessment order against the petitioner by virtue of section, 2(10) of the Wealth Tax Act, 1963. He further urged that revisional authority has provided opportunity of hearing and granted some relief to the petitioner. Therefore, question of violation of natural justice does not arise. He further urged that this Court has no jurisdiction to substitute its own decision in place of the Tribunals' below. The citations cited by the learned counsel for the petitioner is distinguished on facts and law. Petitioner failed to attach grounds of revision alongwith the writ petition and the revisional order reveal that the petitioner did not raise all these grounds which the learned counsel for the petitioner has raised before this Court.

5. Learned counsel for the petitioner in rebuttal, stated that when the basic order is without lawful authority then the super structure shall fall on the ground automatically but this fact was not considered by the revisional authority.

6. I have given my anxious consideration to the contention of the learned counsel for the parties and perused the record myself. It is admitted fact that show-cause notice was issued by the Assessing Officer regarding income tax returns in question to the petitioner. The representative of the petitioner appeared on 10-10-1998 but he did not file any reply of the show cause notice and request was made for adjournment which was granted. The case was adjourned for 17-10-1998. The representative of the petitioner entered appearance but he did not file reply of the show-cause notice and request was made by him for another adjournment which was not granted by the Assessing Officer. It is settled proposition of law that nobody should be allowed to get benefit of his own misdeeds as the petitioner himself failed to file reply of the application within time in spite of providing opportunities to the petitioner as the principle laid down by the Hon'ble Supreme Court in the following judgments:

PLD 1975 SC 331 (Raja Muhammad Fazal's case).

PLD 1974 SC 106 (Wali Muhammad's case).

PLD 1965 SC 269 (Tufail Muhammad's case).

Therefore, question of violation of principle of natural justice does not arise as the principle laid down in (1985) 154 ITR 133 (Sardar Pritam Singh's, case) and relevant observation is as follows: "Notice issued to show cause why penalty be not imposed---Prayer for adjournment of proceedings granted ---Assessee not appearing on the date fixed---Order imposing penalty passed---Tribunal justified holding that assessee was granted reasonable opportunity of being heard before the imposition of penalty."

I am also fortified by Rama Water's case 1991 PTD 272 and the relevant observation is as follows:

"It was also observed that when the case was fixed for hearing before the Wealth Tax Officer and a prayer for adjournment was made, it was refused. It was also mentioned that the assessee's counsel was heard and no reasonable cause was shown. Therefore, the question is answered in the negative, in favour of the Revenue and against the assessee. "

I am also fortified by Muhammad Afzal's case PLD 1995 Quetta 50 and relevant observation is as follows:

"The petitioner was afforded a proper opportunity of hearing vide Letter No. 1981, dated 2-9-1989 to appear before the Examination Committee by whom a complaint was sent regarding use of unfair means, but he failed to appear before the Committee and as such there was no other option but to make a decision. The petitioner could have appeared to explain his position later on which was not done. "

It is also admitted fact that the petitioner 'filed revision petition before the revisional authority who granted some relief to the petitioner after providing full opportunity by reasoned order. Therefore, there is no violation of principle of natural justice. I am fortified by Syed Muhammad Arif Ali's case 1969 SCMR 239. It is also settled proposition of law that this Court has no jurisdiction to substitute its own decision in place of the decision of the Tribunal below as the principle laid down by the Division Bench of this Court in Mussaduq's case PLD 1973 Lah. 600. It is also admitted fact that petitioner did not attach the grounds of revision alongwith the writ petition. Therefore, learned Legal Advisor was justified that the petitioner did not raise these grounds before the revisional authority as is evident from the revisional order meaning thereby petitioner concealed the material facts from this Court. It is settled proposition of law that Constitutional jurisdiction is discretionary in character. I am not inclined to exercise my discretion in favour of the petitioner on the well-known principle that he who seeks equity, must come with clean hands as the principle laid down by the Hon'ble Supreme Court in the following judgments:

1969 SCMR 141,

PLD 1973 SC 236,

1998 SCMR 1462,

1990 CLC 1783 and

1983 SCMR 196.

In view of what has been discussed above, these writ petitions have no merit and the same are dismissed.

C.M.A./M.A.K./A-1/L Petitions dismissed.