Income Tax Ordinance (XXXI of 1979)---

----Ss. 59 & 55---C.B.R. Circular No. 7 of 2002, dated 15-6-2002, para. 9(a)(ii)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Self-Assessment Scheme once issued can be amended or extended---Such change or extension cannot be detrimental to the assessees after returns have been filed and a final and decisive step has been taken by the assessees in response to the scheme notified for the year---Availing the scheme by the assessee is optional and every assessee can file a return under S.55 of the Income Tax Ordinance, 1979 to be treated and assessed under the normal law---Such fact alone, however, does not justify the issuance of parameters of denial of scheme to the assessees individually or collectively after filing of returns---Guidelines issued by the authorities, in the present case, showed that para.9(a)(ii) of the Circular No.7 of 2002 (Self-Assessment Scheme) had been completely substituted---Revenue however, was totally silent as to why these guidelines could not be issued as part of para.9 of the Scheme simultaneously with the scheme or at least before filing of the returns---Shroud of uncertainty appeared to have deliberately been allowed to remain covering guidelines only in order to have unchecked discretion to select a case for total audit---Withholding of parameters or guidelines of selection of cases out of the scheme may not necessarily be mala fide, however, withholding of the guidelines till the filing of returns, did not appear bona fide either---State does not cheat the citizens---Revenue, therefore, was not correct in claiming that the purpose of the guidelines was to provide for impartiality and transparency---Selection of cases for process under normal law on the basis of such guidelines issued after filing of returns was improper---High Court accepted the constitutional petition and set at naught the selection of cases along with any super-structure raised on the basis of that notice including the framing of an assessment.

W.P. No.9979 of 2003, dated 24-9-2003 fol.

Sayyid Ali Imran Rizvi for Petitioner.

Muhammad Ilyas Khan for Respondents.

Date of hearing: 6th September, 2005.

JUDGMENT

NASIM SIKANDAR, J.---In this constitutional petition following prayer has been made:--

"Under the circumstances, it is respectfully prayed that vacating the impugned order of the respondent No.1 under para. 9(a)(ii) of the C.B.R.'s Circular No.7 of 2002, dated 15-6-2002 (Annex-E) the selection of the petitioner/assessee's case for audit under para. 9(a)(ii) (ibid) may kindly be set at naught."

2. It is the case of the petitioner that Self-Assessment Scheme for the year 2002-2003 was announced by the Revenue on 15-6-2002 while the return in this case was timely filed. However, guidelines for selection of cases out of the scheme were issued by the Revenue on 17-12-2002.

3. In this situation, learned counsel submits and I will agree that the principles evolved with respect to the scheme for the assessment year 2002-2003 in W.P. No.9979 of 2003, dated 24-9-2003 are equally applicable to the said assessment scheme in hand. Para. 23 of that order reads as under:--

^"23-Although I am not in agreement with the arguments of the petitioners that a scheme once issued could neither be amended nor extended as an exercise of one time delegated power, yet I am in agreement that such change or extension cannot be ^detrimental to the assessees after returns had been filed and a final and decisive step had been taken by the assessees in ^response to the scheme notified for the year. It is correct that availing the scheme is optional for an assessee and that every assessee of the Income Tax Department can file a return under section 55 to be treated and assessed under normal law.

However, that fact alone does not justify the issuance of parameters of denial of scheme to the assessees individually or collectively after filing of the returns. A glance at the guidelines, dated 17-12-2002 makes it clear that para. 9(a)(ii) of the scheme has completely been substituted. The Revenue is totally silent as to why these guidelines could not be issued as part of para. 9, simultaneously with the scheme or at least before the filing of the returns. The shroud of uncertainty appears to have deliberately been allowed to remain covering guidelines only in order to have unchecked discretion to select a case for total audit. The withholding of the parameters or guidelines of selection of cases out of the scheme may not necessarily be mala fide. However, withholding of the guidelines _A till the filing of these returns does not appear bona fide either. The State does not cheat the citizens. The Revenue, therefore, is not correct in claiming that the purpose of these guidelines was to provide for impartiality and transparency."

4. For the above and various other reasons a number of petitions by the assessees placed in similar condition were allowed on the ground that their cases were selected for process under normal law on the basis of guidelines issued after filing of the returns. Since the facts in hand are also identical, I will allow this petition and hold that the selection of the case of the assessee for total audit on the basis of the guidelines was improper.

5. It shall accordingly be set at naught. Also any superstructure raised on the basis of that notice including the framing of an assessment shall stand set aside.

M.B.A./B-106/L????????????????????????????????????????????????????????????????????? Petition accepted.