Income Tax Ordinance (XXXI of 1979)---

----Ss. 52 & 129---Constitution of Pakistan (1973), Art. 199-- Constitutional petition---Prayer for quashment. of order, whereby petitioner was treated as an assessee in default in terms of S.52 of the Income Tax Ordinance, 1979---Maintainability---Appropriate writ could be issued under Art. 199(1) of the Constitution, if High Court was satisfied that no other adequate remedy was provided by law---Petitioner could assail impugned order in appeal under S.129 of the Income Tax Ordinance, 1979---Tendency of bypassing the remedy provided under relevant statute was deprecated---Impugned order was neither palpably without jurisdiction nor mala fide---High Court dismissed Constitutional petition.

Nizamuddin Ahmad v. Commissioner of Sales Tax 1971 SCMR 68; Hafiz Muhammad Arif Dar v. Income-tax Officer 1989 PTD 485 and Al-Ahram Builders v. Income Tax Appellate Tribunal 1992 PTD 1671 fol.

Fazle Ghani Khan for Petitioner.

Nemo for Respondent.

Date of hearing: 31st October. 2002.

JUDGMENT

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---The petitioner has prayed for quashment of order, dated 26-3-1995, whereby the petitioner has been treated as an assessee in default in terms of section 52 of the Income Tax Ordinance, 1979.

Mr. Fazle Ghani Khan, learned counsel for the petitioner was confronted, with the provisions contained in section 129 of the Income Tax Ordinance, 1979, which provides that, an assessee objecting to an order made by Deputy Commissioner under section 52, treating a person to be an assesses in default, may file appeal to, the Appellate Additional Commissioner against such order. He was further required to show as to how the relief sought can be allowed in exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, when the alternate and efficacious remedy is available under the statute and the said forum, has not been availed.

Mr. Fazle Ghani Khan, learned counsel for the petitioner is not able to satisfy us that, the relief sought can be granted by this Court in exercise of the Writ Jurisdiction.

A bare perusal of Article 199(1) of the Constitution of Islamic Republic of Pakistan shows that, an appropriate writ can be issued, if High Court is satisfied that no other adequate remedy is provided by law. The question pertaining to non-maintainability of writ petition in the wake of non-availing of remedy provided in the Statute has been considered by the Hon'ble Supreme Court in several cases.

In the similar circumstances, the question of maintainability of Constitutional petition under Article 98 of the Constitution of Pakistan 1962 came for consideration before the Hon'ble Supreme Court in the case of Nizamuddin Ahmad v. Commissioner of Sales Tax 1971 SCMR 68. In the cited case writ petition challenging the validity of an order of the Sales Tax Officer refusing an application for refund was dismissed by the High Court of East Pakistan Dacca. A larger Bench of the Hon'ble Supreme Court upheld the judgment of High Court East Pakistan dismissing the petition and his Lordship Mr. Justice Hamoodur Rahman, C.J, observed as follows:--

"Before we part with this appeal we must also point out that the petition under Article 98 of the late Constitution filed in the High Court by the appellant should have been rejected in limine on the ground that the appellant. had not exhausted his remedies under the Sales Tax Act itself.

As already pointed out, from an order under section 27 of that Act an appeal and revision lay in the same manner as from the order of assessment under section 10 of the said Act. The appellant had not taken anyone of these steps from the order of the Sales Tax Officer. He had not, therefore, exhausted the alternative remedies available under the law."

In the case of Hafiz Muhammad Arif Dar v. Income-tax Officer, 1989 PTD 485, this question came for consideration and the Hon'ble Supreme Court held as follows:---

"One of the conditions for grant of relief in writ jurisdiction of the High Court is that the petitioner before it should not have any alternate adequate remedy. In the present case, a remedy by way of appeal, as mentioned in the impugned order, was such remedy. Therefore, it is correct that no relief could be granted to the petitioner under Article 199 of the Constitution."

This question again came for consideration before a Full Bench of Hon'ble Supreme Court in the case of Al-Ahram Builders v. Income Tax Appellate Tribunal 1992 PTD 1671. Mr. Justice Saleem Akhtar speaking for the Bench held as follows:--

"We may now revert to the question whether the appellant was justified to file above Constitutional petition. against the order of the Tribunal instead of invoking section 136 of the Ordinance for making a reference to the High Court. According to Mr. Rehan Naqvi a reference under the above provision would not have been adequate and efficacious remedy as it would have taken years before it could have been heard. The same could be true for a Constitutional Petition. The tendency to by-pass the remedy provided under the relevant statute to press into service Constitutional jurisdiction of the High Court has developed lately, which is to be discouraged. However, in certain cases invoking of Constitutional jurisdiction of the High Court instead of availing of remedy provided for under the relevant statute may be justified, for example when the impugned order/action is palpably without jurisdiction and/or mala fide. To force an aggrieved person in such a case to approach the forum provided under the relevant statute may not be just and proper."

A perusal of the above dicta laid down by the Hon'ble Supreme Court, clearly shows that, the tendency to by-pass the remedy provided under the relevant statute has been deprecated. The learned counsel for the petitioner is not able to show that, the impugned order is palpably without jurisdiction or mala fide.

In view of the above circumstances, it is held that, the petitioner could assail the impugned order in appeal, instead of. invoking writ jurisdiction of this Court. Such course is not warranted in law, and consequently, the writ petition stands dismissed.

S.A.K./C-66/KPetition dismissed.