Income Tax Ordinance (XXXI of 1979)---

----Ss. 66-A, 59, 59-A, 62, 63, 64, 129 & 134---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Show-cause notice under S.66-A of the Income Tax Ordinance, 1979 for re-opening of return filed under Self-Assessment Scheme---Contention of assessee was that after filing such return, Authority did not pass within prescribed period any order thereon either under S.59(1) or S.59-A or Ss.62 & 63 of the Ordinance, thus such assessment stood completed and in the absence of any order prejudicial to the interest of Revenue, there was no occasion for commencing proceedings under S.66-A of the Ordinance- Appeals filed before Appellate Authority and Tribunal were dismissed Validity---Record showed that return of assessee was finalized under S.59-A of the Ordinance at an amount higher than the declared income-- Assessment was erroneous and prejudicial to the revenue, whereas Tribunal had reduced the addition---No case was made out for exercise of Constitutional jurisdiction, which was primarily discre tionary ---High Court dismissed the Constitutional petition in circum stances.

Shahzad Nasir for Petitioner.

Nemo for Respondents.

Date of hearing: 17th January, 2002.

JUDGMENT

The petitioner is being assessed to income-tax as an individual. He filed his return for the year 1985-86 under the Self-Assessment Scheme of the same year. According to the writ petition no order was passed in writing under section 59(1) of the Income Tax Ordinance, 1979 within the time prescribed, nor any order was passed under section 59-A or under sections 62 and 63 of the said Ordinance within the period prescribed in section 64 thereof. The assessment thus stood completed; that the IAC III proceeded under section .66-A and issued a notice to the petitioner on 9-6-1990. The proceedings proposed in the notice were resisted primarily on the ground that there is no order on record which could be termed erroneous and prejudicial to the interests of Revenue within the meaning of section 66-A of the said Ordinance. However, the assessment was completed and some additions were made. An appeal was filed which was dismissed and so was the case with the appeal filed before the Income Tax Appellate Tribunal, Lahore. A reference application was then filed which had not been decided by the time the writ petition was filed. However, later it revealed that vide order, dated 15-2-1996 the said application was also dismissed.

2. Learned counsel for the petitioner reiterates the said contention that since no order was passed within the meaning of section 66-A, there was no occasion for commencing proceedings thereunder and as such the impugned orders are void. No one has turned up for the respondent-

3. I have gone through the records. I find that the total income declared in the said return was Rs.85,332 and it was finalised under section 59-A of the said Ordinance at Rs.94,942 against the said declared income. There is no denial of the facts that the assessment was finalised on 28-6-1988 and an IT 30 was issued. Besides the fact remains that the assessment was erroneous and prejudicial to the State Revenue inasmuch as learned counsel for the petitioner is not in a position to controvert the said fact. Besides I find that the petitioner did invoke the jurisdiction or the Appellate Authority under the said Ordinance and in fact the Income tax Appellate Tribunal reduced the addition from Rs.1,10,500 to Rs.43,000 as asserted by the petitioner on merits of his case. In these circumstances, I do not find any case being made out for exercise or Constitutional jurisdiction which 'primarily is discretionary. The writ petition accordingly is dismissed with no orders as to costs.

S.A.K./A-409/L Petition dismissed.