PAKISTAN PETROLEUM LTD. VS ADDITIONAL COMMISSIONER INLAND REVENUE, 2015 PTD-KARACHI-HIGH-COURT-SINDH 2168 (2015)

Income Tax Ordinance (XLIX of 2001)---

----Ss. 122(5A) & 122(1)---Constitution of Pakistan Art. 199---Constitutional jurisdiction of High Court---Scope---Show-cause notice for further amendment in assessment---Petitioner impugned show-cause notice issued to it under S. 122(5A) of the income Tax Ordinance, 2001 for further amendment of assessment, contending inter alia that assessment of petitioner had already been amended and further amendment amounted to change of opinion which was not permissible under law---Held, that prima facie it appeared that the impugned notice did not suffer from any jurisdictional error, patent illegality or mala fide on part of the Department---Petitioner had been provided with an opportunity which had already been availed by the petitioner in submitting response to the show-cause notice---High Court declined to record any finding or observation on the propriety and merits of the impugned notices as the same might prejudice the case of the petitioner or the Department---No legal issue which had already been subject matter of earlier proceedings against the petitioner under S. 122(1) or 122(5A) of the Income Tax Ordinance, 2001 had been re-agitated, therefore allegation of change of opinion on part of Department stood falsified---High Court observed that tendency to abandon or bypass departmental hierarchy of forums provided under the Income Tax Ordinance, 2001 was to be deprecated---Constitutional petition was dismissed, in circumstances.

Roche Pakistan Ltd., case 2001 PTD 3090; Khalid Mehmood v. Collector of Customs 1999 SCMR 1881; Sitara Chemical Ltd.'s case 2003 PTD 1285 and ICI Pakistan v. Federation of Pakistan's case 2006 PTD 778 rel.

Anwar Kashif Mumtaz for Petitioner.

Muhammad Sarfaraz Ali Metlo for Respondents.

Dr. Farrukh Ahmed Ansari, Commissioner IR, LTU, Karachi, Zulfiqar Ali Memon, Additional Commissioner Zone IIILJUI, Karachi and Sharjeel Ahmed, Deputy Commissioner, IR, LTU, Karachi.

Dilawar Hussain, Standing Counsel.

ORDER

AQEEL AHMED ABBASI, J.---Through instant petition, the petitioner has impugned a Notice dated 1-4-2015 issued under section 122(5A) of the Income Tax Ordinance, 2001, by the Additional Commissioner Inland Revenue, Audit Range A, Zone-III, Legal Tax Payers' Unit, Karachi, for the tax year 2014, on the ground that the same is without jurisdiction and lawful authority. Per learned counsel, through impugned Notice the respondents have confronted the petitioner with certain additions to be made in the income of the petitioner for the tax year 2014 which have no legal basis, whereas, the assessment for the tax year 2014 has already been amended under Section 122(5A) of the Income Tax Ordinance, 2001. Per learned counsel, once, the assessment of the petitioner has been amended under Section 122(1) as well as under section 122(5A) for the tax year 2014, further amendment by respondents' amounts to change of opinion which is not permissible under law. Learned counsel for the petitioner submits that though the petitioner has submitted response to the show-cause notice, however there is likelihood that the respondents will pass an adverse order, whereby a huge demand may be created against the petitioner, therefore, instead of continuing to submit response to such show-cause notice and to seek redressal of grievance before the forums provided under the Statute, the petitioner has filed the instant petition which, according to the learned counsel for the petitioner, is efficacious remedy under the circumstances of the case.

2.Pursuant to the Court Notice. Mr. Muhammad Sarfaraz Ali Metlo, Advocate has shown appearance along with Dr. Farrukh Ahmed Ansari, Commissioner IR, LTU, Karachi, Zulfiqar Ali Memon, Additional Commissioner Zone-III, LTU, Karachi and Sharjeel Ahmed, Deputy Commissioner, IR, LTU, Karachi and has raised an objection with regard to the maintainability of the instant petition. It has been contended by the learned counsel for the respondents that impugned Notices have been issued under Section 122(5A) of the Income Tax Ordinance, 2001, strictly in accordance with law by the Additional Commissioner Inland Revenue, Audit Range A, Zone III, Karachi (respondent No. 1), whereby, the petitioner has been confronted with certain legal discrepancies which were not subject matter of earlier proceedings under Section 122(5A). Per learned counsel, the respondent intends to make further amendment in the assessment in terms of section 122(5A) on the grounds that the assessment in respect of the petitioner for the tax year, 2014 is erroneous and prejudicial to the interest of revenue. Learned counsel further submits that there is no change of opinion whatsoever as contended by the learned counsel for the petitioner for the reason that the legal grounds agitated in the impugned notices do not relate to the controversies which were decided in the earlier round of proceedings either under Section 122(1) or section 122 (5A), whereas, the petitioner has been confronted with fresh legal controversies. Per learned counsel, on mere issuance of Show-Cause Notices, which otherwise are within the jurisdiction, and do not suffer from any illegality, a tax payer cannot be allowed to impugn the same by filing a petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, as it may amount to rendering the departmental forums provided under the statute as redundant. It is further contended by the learned counsel for the respondents that such tendency has been disapproved by this Court as well as by the Hon'ble Supreme Court of Pakistan in number of decisions and requests that instant petition being misconceived in law and facts, may be dismissed in limine. Learned Standing Counsel has also opposed the maintainability of instant petition and argued that the same is liable to be dismissed in limine, whereas, petitioner has approached this Court without any cause of action.

3.We have heard learned counsel for the parties and the learned Standing Counsel, perused the record available before us and the impugned Show-Cause Notice issued by the respondents. Prima facie, it appears that the impugned notice issued under Section 122(5A) by the Additional Commissioner, LTU, Inland Revenue i.e. respondent No.1, does not suffer with any jurisdictional error nor the learned counsel for the petitioner has been able to point out any patent illegality or mala fide on the part of the respondents in issuing such show-cause notice, whereby, the petitioner has been confronted with certain discrepancies in the assessment of the petitioner for the tax year 2014, and also has been provided an opportunity, which has already been availed by the petitioner by submitting response to such notices, to explain the same. So far as the propriety and merits of the impugned Notices are concerned, we are not inclined to record any finding or to make any observations, as the same might prejudice the case of the petitioner or the respondents. It has been noted that through impugned Show-Cause Notice no legal issue, which has already been subject matter of earlier proceedings under section 122(1) or Section 122(5A) has been re-agitated, therefore, the allegation of change of opinion stands falsified. Moreover, tendency to abandon or bye-pass the departmental hierarchy of forums as provided under the relevant Statute i.e. Income Tax Ordinance, 2001, has been depreciated by this Court as well as by the Honourable Supreme Court in number of decisions including (i) Roche Pakistan Ltd., case 2001 PTD 3090 (ii) Khalid Mehmood v. Collector of Customs 1999 SCMR 1881 (iii) Sitara Chemical Ltd.'s case 2003 PTD 1285 and (iv) ICI Pakistan v. Federation of Pakistan's 2006 PTD 778.

4.Accordingly, we do not find any substance in the instant petition, which is hereby dismissed in limine along with listed application. However, the petitioner may submit response to the Show-Cause Notice(s), whereas, respondents are directed to provide complete opportunity of being heard to the petitioner, and before making any additions or passing an amendment of assessment order in the instant matter, the petitioner may be confronted specifically with such additions, whereas, the reply submitted by the petitioner and the relevant law, as well as the decision of this Court, if any, on the subject, shall be taken into account while passing such order.

KMZ/P-17/SindhPetition dismissed.