E.M.E. COOPERATIVE VS COMMISSIONER OF INCOME-TAX
2004 P T D 2199
[Lahore High Court]
Before Muhammad Muzammal Khan, J
E.M.E. COOPERATIVE
Versus
COMMISSIONER OF INCOME‑TAX
Writ Petition No.8178 of 2004, decided on /01/.
th
May, 2004. Income Tax Ordinance (XLIX of 2001)‑‑‑
‑‑‑‑S. 138(2)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Notice of attachment of Bank accounts of the assessee, a Cooperative Society, pending appeals against assessment before the Commissioner‑‑‑Application for ad interim injunction by the assessee before the Commissioner against the notice of attachment was not decided or taken cognizance of‑‑‑Assertions of the petitioner in Constitutional petition revolved around factual disputes, truthfulness or otherwise of which could not be determined without inquiry and such course was not permissible in Constitutional jurisdiction of High Court‑‑ Petitioner was not a private individual who would defy the appellate order if its appeal went against it‑‑‑Minimum what a citizen body corporate expected of a statutory functionary was to decide its matter according to law and the norms applicable, at the earliest‑‑‑Bank account of the petitioner having peen attached the petitioner would not be in a position to even discharge day to day obligations besides paying the salaries to its employees and other utility bills‑‑‑High Court directed the Commissioner of Income Tax to decide appeal of the petitioner or at least its application seeking ad interim injunction immediately preferably within a period of one month.
Rana Hammad Aslam for Petitioner.
ORDER
Petitioner is a Cooperative Housing Society, registered under the Cooperative Laws, who filed its income‑tax return for assessment years 2000‑2001, 2001‑2002 and 2002‑2003 on their respective dates. Order of assessment passed on these returns have been challenged by way of appeals which are reported to be pending before respondent No. 1. Pending these appeals, respondent No.3 issued a notice under section 138(2) of the Income Tax Ordinance, 2001 on 21‑5‑2004 where after respondent No.3 attached bank accounts of the petitioner as the income‑tax was not paid by it. Aggrieved of the action of attachment of accounts petitioner filed an application for ad interim injunction before respondent No. 1, but the same has not been taken cognizance by him. It is contended that respondent No. 1 is bound under law to decide appeal as well as application for grant of ad interim injunction in accordance with law, one way or the other, but he failed to discharge his statutory obligations necessitating filing of instant petition. It is submitted that there is every likelihood of acceptance of appeal because the assessment impugned therein is highly excessive and contrary to the law applicable. Petitioner being a Cooperative Society, is said to have not acted deliberately in violation of the assessment order rather it awaits decision of appeal already filed, in this manner order of attachment of bank accounts of the petitioner is graded to be harsh and not warranted by law.
2. Heard. Record perused. Assertions of the petitioner revolve around factual disputes, truthfulness or otherwise of which cannot be determined without inquiry and recording of evidence and this course is not permissible in Constitutional jurisdiction of this Court in view of the law laid down by the Honourable Supreme Court in the case of Muhammad Younas and 12 others v. Government of N.‑W.F.P. through Secretary Forest and Agriculture, Peshawar and others (1993 SCMR 618). In spite of handicap of Constitutional jurisdiction noted above, it is ama7.inp that two applications by the petitioner were moved one to respondent No .2 and the other before respondent No. 1 for stay of the recovery of the demanded amount, nut none of those has been attended by the concerned officials. Petitioner is not a private individual who will defy the appellate order if its appeal goes against it. This is the minimum which a citizen/a body corporate, expects of a statutory functionary to decide his matter according to law and the norms applicable, at the earliest. Since the bank account of the petitioner has been attached by respondent No.2, the petitioner will not be in. a position to even discharge day to day obligations besides paying the salaries of its employees and other utility bills. I accordingly, direct respondent No.1 to decide appeal of the petitioner or, at least its application seeking ad interim injunction immediately, preferably within a period of one month. Order of respondent No.2 attaching bank accounts shall remain suspended till 1‑7‑2004.
3. Compliance report shall be submitted to Deputy Registrar (Judicial) of this Court. With these observations, this writ petition is disposed of.
M.B.A/E‑3/LOrder accordingly.