Messrs CRESCENT ART FABRICS (PVT.) LTD VS INCOME TAX APPELLATE TRIBUNAL, LAHORE, 2002 PTD-LAHORE-HIGH-COURT-LAHORE 1206 (2002)

Income Tax Ordinance (XXXI of 1979)---

----Ss. 65 & 136(1)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Petition filed after withdrawal of reference-- Maintainability---Re-opening of assessment---After having been un successful before the Appellate Tribunal, the assessee preferred Income Tax Reference before High Court---Reference was subsequent withdrawn and the points raised in the Reference were agitated in the Constitutional petition---Grievance of the assessee was that the accounts filed by it were rejected by the Authorities without verification---Validity---Findings of fact recorded by the Authorities were, questioned and the question embodying the contentions of the assessee were referred to High Court in the Reference which was withdrawn---Withdrawal of Reference or even non-filing of reference would not constitute a bar as to filing of Constitutional petition which had to be decided within the four corners of Art. 199 of the Constitution-- Assessee had failed to make out a case for exercise of Constitutional jurisdiction---Petition was dismissed accordingly.

Iqbal Poultry Farm, Faisalabad v. Commissioner, Income-tax, Faisalabad 2001 PTD 1366 ref.

Khalil Ahmad Rao for Petitioner.

Nemo for Respondent.

Date of hearing: 7th February, 2002.

JUDGMENT

Petitioner is a Private Limited Company and is assessed to income-tax in respect of its business of manufacture and sale of Rexine cloth. The return was filed for assessment year 1984-85 declaring a total income of Rs.2,92,489 which was accepted under the Self-assessment Scheme and finalised on 29-4-1984. Later proceedings were commenced under section 65 of the Income Tax Ordinance, 1979 and assessment was completed on 29-4-1986 at.Rs.3,284,130. An appeal was filed by the petitioner which was allowed by the Commissioner (Appeals) vide order, dated 31-1-1987 and the matter was remanded back to respondent No.3 who completed the assessment afresh vide order, dated 30-6-1988 at Rs.2,124,658. This amount was outcome of the additions made in manufacturing account, P & L Account, building account and land, account. The petitioner filed an appeal which was heard by respondent No.2 and vide order, dated 24-9-1988 some relief was granted in the matter of gross profit which was reduced from 30% to 27%. The construction cost was reduced from Rs.80 to Rs.60 per sq. ft. In the matter of land the price was reduced from Rs.37,000 per Kanal to Rs.18,000 per Kanal.

2. Still feeling aggrieved the petitioner filed an appeal before respondent No.1 which was decided on 30-11-1989. The learned Tribunal in the said order maintained the order of the Commissioner (Appeals). Thereafter a reference application was filed which was allowed by the learned Tribunal and the following questions were referred to this Court:

(i) Whether in the facts and circumstances of the case, the Tribunal was justified in upholding rejection of the applicant's account and application and of G. P rate of 77%.?

(ii) Whether the Tribunal was justified in confirming the total additions made under section 13(1)(d) of the Ordinance for understatement of cost of construction?

(iii) Whether the Tribunal was justified in confirming the addition made under section 13(1)(d) of the Ordinance on account of lowness of cost purchase of land discarding the applicant's plea that the Directors had sold the land at cost?

3. According to the petitioner T.R. No.9/91 was withdrawn on 7-6-1995 with permission to file a writ petition. The prayer made in this writ petition is that the orders passed 'by the respondents respectively be declared to be without lawful authority and of no legal effect.

4. Learned Counsel contends that the accounts have been wrongly rejected; that the cost of construction has been wrongly assessed and that the cost of land also has been erroneously assessed by respondents Nos. 1 to 3 respectively. No one has turned up for the respondents

5. I have already referred in some detail to the history of this litigation. Now the learned counsel is pressing exactly the points which were referred to this Court for decisions by the learned Tribunal and which reference was withdrawn by the petitioner. When confronted, learned counsel states that whereas in the matter of a reference this Court only answers the questions referred whereas, the matter needs to be remanded to the learned Tribunal for a fresh hearing inasmuch as the written, arguments filed by the petitioner were not considered.

6. Copy of these arguments is Annexure P. I find that notwith standing the fact that the learned Tribunal in its order, dated 15-1-1991 (Annexure H) has recorded a finding of fact that the said written arguments bear a date after the date on which the case was heard and that the arguments were not received on the file through the proper Branch and that there is no Diary No. etc. thereon, a perusal of the order Annexure F would show that all the said contentions of the petitioner as contained in the said, arguments were noted. Now according to the learned counsel the two purchases quoted by respondent No.3 in his order which were found to be unverifiable were duly mentioned in the statement appended with the said arguments. However, I find that no evidence in support of the same had been filed before the Tribunal and certainly not on the file of this Court.

7. Learned counsel has also relied upon on the case of Iqbal Poultry Farm, Faisalabad v. Commissioner, Income Tax, Faisalabad 2001 PTD 1366 to argue that the accounts could not have been rejected without proper verification of the certificates. This was a case of a film actor and the documents in question were certificates of payments produced in support of the assessee's version. In the present, case respondent No.3 has found that the purchases are not properly vouched. Thus there was no occasion for respondent No.3 to have rejected any document of the nature being considered by this Court in the said case. Learned counsel has nothing to say in support of his said contention regarding the additions in the construction and the land account.

8. For the above discussion I do not find any force in this writ petition which primarily questions the findings of fact recorded by respondents Nos.1 to 3 and that question embodying the very contentions were referred to this Court, the reference was withdrawn. No doubt the said withdrawal of reference or even non-filing of reference' would not constitute a bar as such to the filing of the writ petition but then it is to be decided within the four corners of Article 199 of the Constitution. The petitioner has failed to make out a case for exercise of Constitutional jurisdiction. The writ petition accordingly is dismissed leaving the parties to bear their own costs.

Q.M.H./M.A.K./C-144/L Writ petition dismissed.