WATER AND POWER DEVELOPMENT AUTHORITY, WAPDA HOUSE, LAHORE

' The brief facts out of which present writ petition arises are that the petitioner executed a contract with a non-resident Company of French namely SOGREAH on 25-3-1990 for Consulting Engineers Services for the implementation of Chashma Hydro Power Project. The payments for technical services to the Consultants were assessable to tax under section 80-AA read with section 12(5) of Income Tax Ordinance, 1979. The said company was required to submit its return under section 80- AA of Income Tax Ordinance, 1979, but the company did not submit the return for the following years:--

(i) 1991-1992

(ii) 1992-1993

(iii) 1993-1994 ' The Assessing Officer of the respondents issued notice to the petitioner on 19-3-1994 to the effect that the proceedings be initiated against the petitioner as agent of the said company, under section 78 of Income-tax Ordinance, 1979. The petitioner submitted reply of notice and denied the allegations levelled in the notice. The Assessing Officer declared the petitioner as agent vide order, dated 9-4-1994 under section 78 of Income Tax Ordinance, 1979. The Assessing Officer also sent notice to the petitioner on the same date under section 80-AA of the said Ordinance, to the petitioner. The petitioner submitted reply of the notice. The Assessing Officer turned down the explanation submitted by the petitioner, vide order, dated 19-5-1994. The petitioner submitted an application before Assessing Authority under section 156 of Income Tax Ordinance, 1979, on 12-6- 1994, which was rejected vide order, dated 10-10-1994. The petitioner being aggrieved filed revision petition before the Commissioner Income-tax Wealth Company Zone-1, Lahore, but he did not decide the same. The petitioner being aggrieved filed Constitutional Petition No,3250 of 1996, which was disposed of by this Court vide order, dated 23-1-1997 with the direction to the Commissioner of Income-tax Company Zone-1, Lahore to decide the revision petition of the petitioner within a period of two months. The Commissioner dismissed the revision petition of the petitioner vide impugned order, dated 15-4-1997, hence the present writ petition.

2. The learned counsel of the petitioner submits that section 80-AA the Income-tax Ordinance, 1979 is a special provision and special procedure is prescribed and Assessing Authority passed the order against the petitioner in violation of mandate of said section as the petitioner is not treated as agent of the Company in terms of mandate of section 80-AA of the Ordinance, 1979. He further submits that the impugned order was passed by the Revisional Authority without adverting to the mandate of sections 50(4) and 12(5) of Income-tax Ordinance, 1979. He further submits that the Commissioner has passed the impugned order without application of mind and countersigned the order of Assessing Authority without adverting to the mandatory provision of Income-tax Ordinance, 1979 and also not in accordance with law laid down by the Superior Courts. In support of his contention, he relied upon the following judgments:-- "Co-op: Insurance Society v. State Life Insurance" (1999 SCM R 2799); "Commissioner of Income-tax v. Smith Kline and French." (1991 PTD 999 = 1991 SCM R 2374; "Messrs Elahi Cotton Mills Ltd. v.

Federation of Pakistan and others" (PLD 1997 SC 582); "Hirjina & Company v. Islamic Republic of Pakistan and others" (1993 SCM R 1342); "Lesser Praxis Depilex v. Customs Central Excise 2002 PTD 549 and "Messrs Pfizer Laboratories Ltd. v. Federation of Pakistan and others" PLD 1998 SC 64.

' He summed up his arguments that Assessing Authority as well as Revisional Authority assessed the amount which was paid as tax by the foreign company to its own Government i,e, France and also included T.A. And D.A. In the tax, which is not in consonance with the mandate provision of Income-tax Ordinance, 1979 read with sections 86 , 88 and 53-A of the said Ordinance.

3. The learned counsel of the respondents submits that Assessing Authority had adjudicated the petitioner as agent vide order, dated 9-4-1994 under section 78 which is appealable under section 129 of the Income-tax Ordinance, 1979, but the petitioner has not filed any appeal against the order of Assessing Authority, therefore, the same has attained finality. He further submits that the revision petition filed by the petitioner before the Revisional Authority was time-barred and /aluable right has accrued to the respondents, therefore, the Revisional Authority was justified to dismiss the revision petition of the petitioner as time-barred. He further submits that the Revisional Authority has passed the impugned order after application of mind as is evident from the contents of impugned order. He further submits that the Revisional Authority has confirmed the findings of the Assessing Authority, therefore, the Revisional Authority was not under obligation to give reasons in support of the impugned order. He further submits that this Court has no jurisdiction to substitute its own findings in place of findings of the Tribunal blow.

4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

5. It is admitted fact that the petitioner has filed Constitutional Petition No,3250 of 1996, which was disposed of by this Court vide order, dated 23-1-1997 in the following terms:- "The learned counsel of the Department assures the Court that the revision petition sent to the Commissioner Income Tax Peshawar will be withdrawn with necessary record and will be decided by the Commissioner of Income-tax Companies Zone-I, Lahore/herein respondent No,1 within the period of two months. He further assures the Court that the aforesaid authority shall determine the grievance of the petitioner strictly in accordance with law and not otherwise. In this view of the matter, learned counsel for the petitioner does not want to press this petition at this stage and reserves his right to come to this Court again if his grievance is not redressed within the parameters of law."

It is pertinent to mention here that the aforesaid order was passed by this Court with the consent of the learned counsel for the parties, therefore, order, dated 23-1-1997 is final between the parties, thus, the Commissioner of Income-tax has to decide the revision petition of the petitioner within parameters prescribed by this Court vide order, dated 23-1-1997. The Revisional Authority has decided the revision petition without application of mind and counter signed the order of the Assessing Authority, which is not sustainable in the eye of law, as per principle laid down by the Honourable Supreme Court in "Ghulam Mohy-ud-Din's case" (PLD 1964 SC 829). Even otherwise, after addition of section 24-A in the General Clauses Act which is procedural in character and has retrospective effect. The public functionaries are duty bound to decide the controversy between the parties after application of independent mind with reasons, as per principle laid down by the Honourble Supreme Court in the following judgments:-- "Messrs Airport Support Service v. Airport Manager." (1998 SCM R 2268) and "Zainyar Khan v. Chief Engineer, C.R. & B.C. 1998 SCM R 2419"

' It is also settled principle of law that the public functionaries are duty bound to decide the controversy between the parties in accordance with law, as per principle laid down by the Honourable Supreme Court in "Utility Store's case" (PLD 1987 SC 447). This Court has ample jurisdiction to give direction to the public functionaries to act in accordance with law -in view of Article 4 of the Constitution, while exercising powers under Article 199 of the Constitution, as per principle laid down by the Honourable Supreme Court in "H.M. Rizvi's case" (PLD 1981 SC 612) and "Gull Muhammad Hajuano's case" (2003 SCM R 325).

6. In view of what has been discussed above, this writ petition is accepted and the impugned order is set aside, meaning thereby the revision petition filed by the petitioner before Commissioner Income-tax (respondent No,1) shall be deemed to be pending adjudication. Parties are directed to appear before respondent No,1 in his office at 11-00 a.m. On 28-4-2004, who is directed to decide the revision petition of the petitioner afresh in terms of aforesaid direction of this Court, after applying his independent mind in accordance with law as expeditiously as possible.

' With these observations, this petition is disposed of. Copy "Dasti" on payment of usual charges.