MUHAMMAD AFZAL VS DEPUTY COMMISSIONER OF WEALTH TAX, CIRCLE II, LAHORE
2002 P T D 397
[Lahore High Court]
Before Mansoor Ahmad, J
MUHAMMAD AFZAL
versus
DEPUTY COMMISSIONER OF WEALTH TAX, CIRCLE II, LAHORE and another
Writ Petition No. 1608 of 1994, heard on 25/10/2001.
(a) Wealth Tax Act (XV of 1963)---
----Ss.2(16) & 2(m)---Punjab Undesirable Cooperative Societies (Dissolution) Ordinance (XXXT of 1992), Preamble---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Net wealth-- Assessment year 1991-92---Property purchased as on 30-6-1991 and included in wealth tax return---Property was subsequently taken into possession by the Liquidation Board---Inclusion of such property in net wealth---Validity---Physical possession of the property taken over by the Liquidation Board after 30-6-1991 did not relate to the assessment year 1991-92---Taking over of the property by Liquidation Board in subsequent years was not a plea available on merits to the assessee to challenge the order for the assessment year 1991-92.
(b) Constitution of Pakistan (1973)---
----Art.199---Constitutional petition---Statutory remedy---Failure to avail statutory remedy brings infirmity to the Constitutional petition.
Siraj-ud-Din Khalid for Appellant.
Muhammad Ilyas Khan for Respondents.
Date of hearing: 25th October, 2001.
JUDGMENT
Through this writ petition the petitioner has called into question the assessment order for 1991-92 passed under Wealth Tax Act so far as it related to 4 Kanals of plots situated at S.C.C.S. Limited.
2. Facts of .the case are that the petitioner is a Wealth Tax Payer with GIR No. 2687/11 - with Deputy Commissioner of Wealth Tax, Circle II, Main Market Gulberg, Lahore. Petitioner filed wealth tax return for the assessment year 1991-92 and declared his gross wealth at Rs.12, 46,250. He also mentioned 4 Kanals plots in S.C. C.S. of the value of Rs.12,25,800 claiming exemption of this amount on the ground that F.E.B.C. Certificate for an amount of Rs.12,25,800 were encashed for purchasing these plots of 4 Kanals from Services Credit Cooperative Housing Society, Lahore. The society executed sale-deed in respect of two plots on 30-6-1991. Later according to the petitioner these plots were taken over by the Liquidation Board under Punjab Undesirable Cooperative Societies (Dissolution) Ordinance, 1992 by the Liquidation Board.
3. That the Assessing Officer passed an order under section 16(3) of the Wealth Tax Act for the assessment year 1991-92 wherein 4 Kanals plots transferred by Service Credit Cooperative Housing Society, Lahore in favour of the petitioner were taken as an asset of a value of Rs.12,25,800. The petitioner filed a revision petition from the assessment order before the Commissioner of Wealth Tax Central Region, Lahore. It was disposed of by the order dated 29-6-1993 passed by the Commissioner. Partial relief was given to the petitioner but the plea of the petitioner in respect of 4 Kanals of plots was not accepted by the Commissioner. The present writ petition is directed to challenge the assessment order.
4. The learned counsel for the petitioner argued that although two Plots measuring 2 Kanals each bearing Nos.BO-4 and BO-5 were transferred to him by Services Cooperative Credit Corporation Limited through a registered sale-deed, dated 30-6-1991 but these plots were taken into possession by the Liquidation Board. Therefore, these plots could not be taken as assets of the petitioner. Advancing his arguments learned counsel placed reliance on section 2(m) of the Wealth Tax Act, 1963.
5. Learned counsel for the Revenue questioned the maintainability of the writ petition.
6. After hearing the arguments of the parties I find that the -assessment order which is put to challenge through this writ petition pertains to the assessment year 1991-92. The financial year for this assessment order ended on 30-6-1991. The petitioner acquired the ownership of these two plots through a registered sale-deed on 30-6-1991 and these plots were shown as assets in the return. However, an exemption was claimed of the amount invested for the purchase of these plots on the ground that the investment was made from F.E.B.C. Any subsequent event like taking over the physical possession of these plots by Liquidation Board after 30-6-1991 did not relate to the assessment year 1991-92. As such taking over of the plot by Liquidation Board in subsequent years is not a plea available on merits to the petitioner in the present writ petition to challenge the order for assessment year 1991-92. The petitioner, therefore, has no case on merits.
7. Yet for another reason the writ petition is fated to fail. The assessment order passed by the Assessing Officer was liable to be challenged through an appeal before the Commissioner of Income-tax Appeal and then through a second appeal before Income-tax Appellate Tribunal and ultimately through a tax reference before a Division Bench of this Court. The petitioner did not avail of statutory remedies provided to him under law and chose to seek his remedy by filing a revision petition before the Commissioner of Income-tax on the executive side Failure to avail of statutory remedy brings another infirmity to th 1 present writ petition. Therefore, on this score also I do not find an substance in the writ petition.
Resultantly I dismiss the writ petition but before parting with I would like to observe that this decision would not cause any prejudice either to the petitioner or to the Liquidation Board in determining the ultimate fate of these plots.
C.M.A./M.A.K./M-871/L Petition dismissed.