PUNJAB OIL MILLS LTD. VS FEDERATION OF PAKISTAN, 2015 PTD-ISLAMABAD 1219 (2015)

Income Tax Ordinance (XLIX of 2001)---

----Ss. 122(9) & 122A----Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Scope---Show-cause notice for amendment/revision in assessment---Petitioner/taxpayer impugned issuance of show-cause notice under S. 122(9), read with S. 122A, of the Income Tax Ordinance, 2001 on the ground, inter alia, that the question raised in the show-cause notice had already been settled, therefore, it would be a waste of time for the petitioner to join the proceedings---Held, that contention of petitioner was not tenable as the petitioner had neither filed its reply to the show cause notice nor had appeared before the issuing authority---Jurisdiction of High Court under Art. 199 of the Constitution could not be exercised in case of a show-cause notice, merely on basis of assumptions and speculations---High Court could not assume any mala fide on part of the authority which had issued the show cause notice and the power of the authority was vested in it by legislation and it was expected that a statutory authority would exercise its powers in accordance with the law and principles---Constitutional petition was therefore, not maintainable.

1990 PTD 155 ref.

Sajid Ijaz Hotiana for Petitioner.

Babar Bilal for Respondents.

Malik Zahoor Ahmed Awan, Standing Counsel.

ORDER

C.M. Nos. 02/12 and 18/2015.

ATHAR MINALLAH, J.---Today, the captioned applications were fixed for hearing, but learned counsel for the parties request that the main petition may be taken up.

2.In the circumstances, main petition is taken up.

MAIN WRIT PETITION.

The learned counsel for the petitioner has relied on the judgment of the august Supreme Court of Pakistan, reported as 1990 PTD 155. The learned counsel has stressed that a wrongful notice is also assailable under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. It is an admitted fact that in the instant petition show-cause notice dated 24-5-2012, has been assailed. The show-cause notice has been issued pursuant to powers vested under section 122(9) read with section 122(5A) of the Income Tax Ordinance, 2001 (hereinafter referred to as the "Ordinance"). This Court has already held that the jurisdiction under Article 199 of the Constitution cannot be exercised in case of a show-cause notice, merely on the basis of assumptions or speculations. The petitioner has neither filed its reply nor has appeared before the authority, which has issued the show cause notice. The contention of the learned counsel for the petitioner that the question raised in the show cause notice has already been decided by the learned Appellate Tribunal and by the Superior Courts as well and, therefore, it would be a sheer waste of time to join the proceedings is not tenable.

2.I am afraid that there is no force in the contention of the learned counsel for the petitioner. This Court cannot assume any mala fide on part of the authority, which has issued the show cause notice. In any case the legislation has vested powers in an authority and it is expected that the statutory authority shall exercise powers in accordance with law and the laid down principles. This court, therefore, is not persuaded that the petition at this stage is maintainable.

3.In the light of the above and to meet the ends of justice, the instant petition is being disposed of in the following terms:--

"The authority i.e. the respondent No.3, shall afford an opportunity of hearing to the petitioner. The petitioner shall be at liberty to raise all legal and factual grounds. The respondent No.3 shall take into consideration all the grounds raised by the petitioner and, thereafter, pass a speaking order."

4.The writ petition stands disposed of in the above terms.

KMZ/45/IslOrder accordingly.