Ch. SAMIULLAH VS COMMISSIONER OF INCOME TAX, ZONE `A', LAHORE, 2002 PTD-LAHORE-HIGH-COURT-LAHORE 1212 (2002)

(a) Income Tax Ordinance (XXXI of 1979)---

----Ss. 65 & 136(2)---Constitution of Pakistan (1973), Art. 199-- Constitutional petition---Maintainability---Reopening of assessment-- Show-cause notice---On the allegation of escapement of income tax, the Assessing Officer issued notice to the assessee under S.65 of the Income Tax Ordinance, 1979----Contention of the assessee was that the show -cause notice dated 27--6--1991, regarding refiling of return for the assessment year 1985-86 was without lawful authority ---Validity-- Question of law arising out of the order of Appellate Tribunal, could be referred to High Court and in case of refusal by the Tribunal to make a reference, the petitioner could approach High Court under S.136(2) of Income Tax Ordinance, 1979---Instead of approaching the Revenue forums or to satisfy the Assessing Officer, and to explain his position that he had not concealed any income or property from the Revenue, the assessee had by passed all the forums prescribed under the law---High Court declined to interfere with the show-cause notice issued to the assessee-Constitutional petition was dismissed in circumstances.

Edulji Dinshaw Limited v. Income-tax Officer PLD 1990 SC 399; Re: Commissioner of Income-tax Companies-II and another v. Hamdard Dawakana (Waqf) Karachi PLD 1992 SC 847; Al-Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal 1993 SCMR 29 and Messrs Amin Textile Mills (Pvt.) Limited v. Commissioner of Income-tax and 2 other 2000 SCMR 201 distinguished.

Be Be Jan Pakistan (Pvt.) Limited, Faisalabad v. The I.A.C. of Income-tax of Companies Range-VI, Faisalabad and 3 others 2002 PTD 208 ref.

(b) Income Tax Ordinance (XXXI of 1979)---

----S.59---Self-Assessment Scheme of 1985, Note 7---Return under Self -Assessment Scheme---Applicability---Where return of income was accepted under immunity provisions, Note 7 of Self-Assessment Scheme issued by Central Board of Revenue through Circular would be applicable.

(c) Income Tax Ordinance (XXXI of 1979)---

----S.59---Constitution of Pakistan (1973), Art. 199(4A)---Constitutional petition---Interim injunction--Self-assessment --- Contention of the assessee was that due to interim injunction, the disputed assessment could not be made---Validity---Life of interim injunction in revenue matters could not exceed six months---Court of equity and good conscience would not allow an assessee to challenge an order passed in his favour which went beyond the prescribed period without any fault on the part of .the Authorities---Assessment order could be framed in circumstances.

Sh. Zia Ullah for Petitioner.

Kh. Muhammad Saeed on behalf of Muhammad Ilyas Khan for the Revenue.

Date of hearing: 7th February, 2002.

JUDGMENT

In this Constitutional Petition filed on 4-8-1991 following prayer has been made:---

"It is, therefore, respectfully prayed that the writ petition of the petitioner may kindly be accepted and the approvals, dated the 26th of June, 1991 and the 27th of June, 1991, of respondents Nos. 1 and 2, respectively, granted to respondent No. 3 to re open the decided income-tax case of the petitioner for the assessment year 1985-86 and the subsequent notice, dated the 27th of June, 1991, issued by respondent No.3 under section 65 of the Income Tax Ordinance, 1979, to the petitioner requiring him to refile his assessment return for the said year by the 30th of June, 1991, may kindly be declared as being without lawful authority and of no legal, effect.

2. The petitioner is, an individual and an assessee of the Income Tax Department. For the assessment year 1985-86 the return filed by him under Self-Assessment Scheme was accepted on 25th of June, 1986. Subsequently on 10-6-1991 the concerned Assessing Officer during the assessment proceedings for the year 1988-89 issued a show-cause notice to the petitioner as to why, the assessments already framed for the years 1985-86 and 1986-87 should not be re-opened for his failure to disclose the value of six properties detailed in the notice purchased during this period. The petitioner appears to have duly replied to the said notice through his Chartered Accountants on 13-6-1991. Thereafter the Assessing Officer approached the concerned Controlling Officer on 15-6-1991 for grant of approval to re-open the assessments which was accordingly granted: Accordingly on 27th June, 1991 the Assessing Officer issued a notice under section 65 of the income Tax Ordinance, 1979 to the petitioner alleging escapement of income. That notice was statedly served upon the petitioner on 29th June, 1991. The assessee objected to the issuance of notice and did not file a reply.

3. Learned counsel for the petitioner in support of the maintainability of the petition and his arguments for grant of the aforesaid prayer relies upon Re: Edulji Dinshaw Limited v. Income-tax Officer (PLD 1990 SC 399), Re: Commissioner of Income-tax Companies II and another v. Hamdard Dawakana (Waqf) Karachi (PLD 1992 SC 847), Re: Al-Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal (1993 SCMR 29) and Re: Messrs Amin Textile Mills (Pvt.) Limited, v. Commissioner of Income-tax and 2 other (2000 SCMR 201).

4. Learned counsel for the Revenue, however, opposes an interference in Constitutional jurisdiction by relying upon Re: Messrs Be Be Jan Pakistan (Pvt.) Limited, -Faisalabad v. The I.A.C. of Income-tax of Companies Range-VI, Faisalabad and 3 others (2002 PTD 208).

5. After hearing learned counsel for the parties I will readily agree with the learned counsel for the Revenue that the aforesaid prayer cannot be granted. The petitioner could very well take, all these objections before the Assessing Officer. In case of an adverse assessment order he could approach the CIT (Appeals): and then the Tribunal. A question of law arising out of the order of the Tribunal could be referred to this Court and in case of denial by the Tribunal to make a reference the petitioner/assessee could approach this Court under section 136(2) of the Income Tax Ordinance, 1979. Instead of approaching these forums or to satisfy the Assessing Officer and to explain his position that he had not concealed any income or property from the Revenue the petitioner has attempted to jump over all the aforesaid forums prescribed under the law. His statement that the aforesaid approval could not be granted by the IAC or the Commissioner but only by the Central Board of Revenue as per Note 7 of Self-Assessment Scheme issued through Circular No.3 of 1985 is also not acceptable. Note 7 of the aforesaid Circular applies only where return of an income was accepted under immunity provisions. In the present case there is nothing on record to show that the return filed by the petitioner was accepted under the immunity provisions detailed in clause 6 of the said Circular. The facts confronted to him can hardly be resolved in exercise of Constitutional jurisdiction. The impugned notice does not appear hit either by provisions of the Income Tax Ordinance or any clause of Circular No.3 of 1985 contained in Self Assessment Scheme for the relevant year. Therefore, the case-law relied upon by the learned counsel describing the notice to be void, ab initio is hardly of any relevance.

6. As alternate plea learned counsel contends that time for framing of an assessment for the relevant year has now elapsed even after excluding the maximum period of stay of six months under Article 199(4-A) of the Constitution. Therefore, according to him no assessment for the aforesaid years can legally be framed any more. The argument is necessarily fallacious.

7. The petitioner in fact wishes to use the interim order issued in his favour by this Court against the Revenue. It will be seen that an interim injunction against assessment proceedings was allowed by this Court on 4-8-1991 and confirmed on 9-3-1992 in the following words:---

"The interim stay order already granted on 4th of August, 1991 is confirmed till the disposal of this writ petition."

8. It is correct that the life of an interim injunction in Revenue matter cannot exceed six months. However, a Court of equity and good conscience will not allow a petitioner to challenge an order passed in his favour which goes beyond the prescribed period without any fault on the part of the respondent. Therefore, the plea that no assessment order for the year under review could any more be framed is unacceptable.

9. In the judgment relied upon by the learned counsel for the Revenue Re: Messrs Be Be Jan Pakistan (Pvt.) Limited, Faisalabad v. The I.A.C. of Income-tax of Companies, Range-VI, Faisalabad and 3 others (supra) the tendency of bypassing the remedies provided under a statute and pressing into service of Constitutional jurisdiction was found improper. In that judgment Mansoor Ahmad, J. considered and distinguished all the judgments now being relied upon by the learned counsel for the petitioner.

10. For the various reasons detailed above, I am of the view that the petitioner has no case at all for interference in Constitutional jurisdiction.

11. This petition shall accordingly be dismissed.

Q.M.H./M.A.K./S-366/LPetition dismissed.