PIONEER PAKISTAN SEED LIMITED, LAHORE VS FEDERATION OF PAKISTAN through Secertary, Ministry of Finance, Islamabad
2002 P T D 909
[Lahore High Court]
Before Maulvi Anwarul Haq, J
PIONEER PAKISTAN SEED LIMITED, LAHORE
versus
FEDERATION OF PAKISTAN through Secertary, Ministry of Finance, Islamabad and 3 others
Writ Petition No. 18215 of 1995, heard on 16/01/2002.
(a) Income Tax Ordinance (XXXI of 1979)---
----Ss. 55, 80-D & Second Sched., Part IV, para. 9 [as amended by Finance Act (IX of 1996)]---Declaration once filed in terms of para. 9, Part IV of Second Sched. of the Income Tax Ordinance, 1979 alongwith return of total income under S.55 of the Ordinance would constitute irrevocable option and would hold good for three assessment years following the filing of the same.
(b) Income Tax Ordinance (XXXI of 1979)---
----Ss. 55, 80-D, 129, 134 & 136---Constitution of Pakistan (1973); Art. 199---Limitation Act (IX of 1908), Ss.5 & 14---Constitutional petition---Maintainability---Assessment was completed during pendency of Constitutional petition, wherein challenge was made to show-cause notice---Petitioner then invoked jurisdiction of Appellate Authorities in Income Tax hierarchy, but failed---Constitutional petition filed against the very issuance of show-cause notice had been rendered infructuous because of adjudication by Income Tax Authority and Tribunal---Such orders were not under challenge in Constitutional petition, thus, petitioner could avail remedy of seeking or filing a reference in accordance with law, and while doing so, he could apply for condonation of delay, which application, if any would be considered sympathetically.
Messrs H.M. Abdullah v. The Income-tax Officer, Circle V, Karachi 1993 SCMR 1195 rel.
Dr. Ilyas Zafar for Petitioner.
Mian YousafUmer for Respondent No.2.
Mian Ashiq Hussain for Respondents Nos.3 and 4.
Date of hearing: 16th January, 2002.
JUDGMENT
The petitioner is a manufacturing concern. According to the learned counsel for the petitioner while filing return for the year 1991-92 the petitioner had filed a declaration in terms of para.9 Part IV of. the said Second Schedule to the Income Tax Ordinance, 1979. Thereafter, on 7-1-1993 the return for the year 1992-93 was filed. However, according to the learned counsel his client remained under the bona fide impression that since once declaration has been filed which constitutes irrevocable option, a declaration to the said effect was filed alongwith said return on 7-9-1993 C.B.R. issued a clarification that the said declaration is to be filed alongwith every return for following assessment year. Be that as it may, the assessment was completed by the concerned officer and tax was imposed under section 80-D. On 11-2-1995 a show-cause notice was issued to the petitioner stating that since the said option was not exercised with return for the year 1992-93, the assessment is erroneous and the petitioner was called upon to provide information/documents etc. Despite representation that the non-filing the declaration is result of said bona fide misconception, the respondent insisted to proceed further in the matter though revise return had been filed for the said year with the said option. With these averments a mandamus was sought prohibiting the respondent from reopening the assessment for the year 1992-93.
2. The writ petition was put up before the Court on 20-12-1995 when pre-admission notice was issued and proceedings were stayed. The petition was then admitted to regular hearing on 26-11-1997. Thereafter, the case came up for hearing twice u 1 not be taken up.
3.Learned counsel for the petitioner argues teat on plain reading of the contents of said para. 9 Part IV of the Second Schedule to the said Ordinance a declaration is o be furnished along with return of total income under section 55 of the Ordinance is to be filed to exercise irrevocable option out of the presumptive tax regime. The precise contention is that as per the said words of the Statute declaration once filed is irrevocable and as such the petitioner was within bound to assume that a fresh declaration with return for the following year need not to be furnished. According to the learned counsel the C.B.R. itself felt need to issue a clarification but the same was issued at a point of time when return had already been filed.
4. Learned counsel for the respondents on the other hand argues that during the pendency of this writ petition the assessment was completed and the petitioner invoked the appellate jurisdiction of the Commissioner Income Tax who dismissed the appeal when the same contentions were raised, then the petitioner invoked the jurisdiction of Income Tax Appellate Tribunal, Lahore, and the appeal was dismissed while rejecting the said contentions.
5. Mian Ashiq Hussain, learned counsel for the respondents relies on the case of Messrs H.M. Abdullah v. The Income Tax Officer, Circle V, Karachi (1993 SCMR 1195) to urge that the writ petition has been rendered infructuous when the assessment was completed and the petitioner opted to invoke the jurisdiction of Appellate Authorities in the Income Tax hierarchy.
6. The facts of the case more or less are undisputed. The only question involved is as to whether the petitioner could have bona fide believed in the circumstances, that a fresh declaration is not required particularly in view of the wording of the said provision of law at the relevant time. I have been informed that later the provision itself was amended and it has been provided that the declaration once filed in accordance with same would hold good for three assessment years following the filing of the same. To my mind, prima facie the contention of the petitioner appears to be correct. However, at the same time the learned counsel is fully supported by the said judgment in the case of Messrs. H.M. Abdullah relied upon by him when he contends that this writ petition which was initially filed against the very issuance of show. cause notice has been rendered infructuous because of the adjudication by the said Income Tax Authority and the learned Appellate Tribunal. Needless to state that the said orders adjudicating upon plea of the petitioner is not under challenge before me in this writ petition. The petitioner of course can avail remedy of seeking or filing a reference in accordance with law. Dr. Ilyas War, Advocate urges that he would be facing the bar of limitation. Learned counsel further contends that he has been under bona fide impression that the matter can be dealt with in this writ petition as the orders have been passed during the pendency of the same. However, at the moment no precedent to the contrary has been cited and the said judgment in the case of Messrs H.M. Abdullah does lead to the conclusion that the present petition has become infructuous. Learned counsel appearing for the respondents, however, stated that the petitioner can very well-invoke the provisions of sections 5 and 14 of the Limitation Act in the matter. In this view of the matter this writ petition is disposed of as having been rendered infructuous. The petitioner shall however, be at liberty to avail the remedy provided under the law against the orders passed by Income Tax Appellate Tribunal, Lahore, while doing so he can also apply for condonation of delay which application, it any, it is hoped shall be considered sympathetically in the peculiar circumstances of the present case. No order as to costs.
S.A.K./P-75/LOrder accordingly