Income Tax Ordinance (XLIX of 2001)‑‑‑

‑‑‑‑S.133‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑‑Constitutional petition‑‑‑ Contention of the petitioner was that during pendency of appeal or Reference, no second assessment/re‑assessment could be carried out by the taxing authorities‑‑‑Counsel appearing for the department assured the Court that department will not proceed with re‑assessment of the matter in post remand proceedings till the Reference was decided by the High Court‑‑‑High Court while disposing of the Constitutional petition observed that in view of the undertaking given by the counsel for the department, the petition had fructified and it goes without saying that the undertaking amounted to an injunction.

Muhammad Inayatullah Cheema v. Ali Raza Masood Qazilbash 2002 PTD 1195; Mst Inayat Begum v. Commissioner of Income Tax, Lahore 1985 PTD 375 and (2003) 87 Tax 165 (Tribunal) ref.

Ali Imran Rizvi for Petitioner.

Muhammad Ilyas Khan for Respondents.

Date of hearing: 9th December, 2004.

JUDGMENT

This Constitutional petition was filed by the petitioner against initiation of proceedings by the Taxation Officer (respondent No.2) in post remand proceedings for the purpose of re‑assessment in terms of order, dated 9‑3‑2002 of the learned ITAT, although a reference thereagainst was statedly pending before this Court.

2. This petition was admitted to the regular hearing through order, dated 13‑5‑2003 the relevant paras. of which (Paras. Nos. 1, 2, 3 & 4 are reproduced hereunder for the purpose of reference:‑‑

(1) "The contention raised in the present Constitutional petition is that against assessment petitioner's appeal succeeded and the assessment earlier made was set aside. The learned Income Tax Appellate Tribunal through order, dated 9‑3‑2002, after setting aside the assessment under challenge, remitted the case back for reassessment. However, on petitioner's application, five questions were referred by the learned Tribunal to this Court through order, dated 17‑8‑2003 and as such R.A. No. 547/LB of, 2002 is still pending.

(2) The Taxation Officer (respondent No.2) has notified the petitioner to appear before him in post remand proceedings for the purpose of re‑assessment in terms of order, dated 9‑3‑2002 of learned ITAT. The contention is that law has become settled that during pendency of appeal or reference, no second assessment/re‑assessment can be carried out by taxing authorities. Reference in this regard has been made to the cases of "Muhammad Inayatullah Cheema v. Ali Raza Masood Qazilbash" (2002 PTD 1195) and "Mst Inayat Begum v. Commissioner of Income Tax Lahore" (1985 PTD 375) and (2003) 87 Tax 165 (Tribunal).

(3) It is also contended that the above reference has not yet been fixed before the High Court, but it is also a moot question whether High Court in a pending reference can assume jurisdiction to grant interim relief.

(4) Be that as it may, adequate to state that question of re assessment during pendency of the reference before this Court, in view of above stated judgments, requires consideration. Admit. Notice."

3. On petitioner's C.M. No. 1‑C/2003, the proceedings of re -assessment before respondent No.2 were however ordered to be stayed.

4. In response to the notice, Mr. Muhammad Ilyas Khan, Advocate has appeared on behalf of the respondents and stated that the respondents shall not proceed with re‑assessment of the matter in post remand proceedings till the reference is decided by this Court.

5. In view of the above undertaking of the respondents through their learned counsel, this petition has fructified. It goes without saying that the undertaking obviously amounts to an injunction.

6. Accordingly, this petition is disposed of with above observations along with all C.Ms.

M.B.A./A‑338/LOrder accordingly.