DEPUTY COMMISSIONER OF INCOME TAX/ WEALTH TAX, FAISALABAD and others vs Messrs PUNJAB BEVERAGE COMPANY (PVT) LTD

ORDER

' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.---These petitions have been filed against the judgment dated 24-2-2003 passed by Lahore High Court, Lahore in Writ Petitions Nos.4408 and 4360 of 2002.

2. Precisely stated facts of the case are that proposed show cause under section 66A of Income Tax Ordinance, 1979, dated 6-3-2002 was issued to respondent who instead of contesting the proceeding before the forum directly filed writ petitions in the Lahore High Court. The High Court accepted the plea vide impugned judgments dated 24-2-2003.

3. Learned counsel for Department contended that as per language of the show-cause notice department had only asked as to why proposed action be not taken, the respondents could not have filed writ petitions in the High Court. They ought to have replied to the notice and contested the same within the Department. He in this behalf placed reliance on AlAhram Builders (Pvt.) Ltd. v.

Income Tax Appellate Tribunal 1993 SCM R 29.

4. We have heard learned counsel and have gone through the reported judgment carefully wherein it has been held that tendency of by-passing the remedy provided under law, and resort to Constitutional jurisdiction of High court was deprecated. In view of the contents of the notice the Department only contemplates to take action against them. The petitioner instead of rushing to the High Court and consuming sufficient time should have submitted reply before invoking the jurisdiction of the High Court. We have held in the judgment that such practice is to be deprecated because if merely A on the basis of show-cause notice proceedings are started then in such position department would never be in a position to proceed with the cases particularly the recovery of revenue etc. Thus keeping in view the circumstances of the case we are of the opinion that respondent, had wrongly availed remedy under Article 199 of the Constitution instead of availing appropriate remedy under Income Tax Ordinance, 1979. Therefore, merely for the purpose of convenience, availing the remedy of the High Court under Article 199 of the Constitution cannot be appreciated. Thus for the foregoing reasons petition is converted into appeal and allowed. The impugned judgment is set aside. No costs.