Raja HABIB AHMAD KHAN vs THE INCOME TAX OFFICER

1. HAMOODUR RAHMAN, C. J.-This is a petition for special leave to appeal from an order of a Division Bench of the Peshawar High Court dismissing a petition under Article 98 of the Consti--tution of 1962 which was filed to call in question an order of the Income-tax Officer, passed on the 10th of May 1966, assessing the petitioner herein to income-tax in the sum of Rs. 1,30,563 for the assessm ent year 1961-62 and in the sum of Rs. 29,614 for the assessment year 1962-63.

2. The petitioner in this case is the same as the petitioner in Petition for Special Leave to Appeal No. 64-P of 1971 and the learned counsel is also the same. It was he who was appointed the authorised representative petitioner for the purposes, inter alia, of received, notices etc. The Income-tax Officer issued fresh notices for the adjourned date to both the assessee as well as his authorised representative. The notice on the assessee was served by affixation as the regis-- tered notices earlier sent had come back with the endorsement that the assessee had "gone away for treatment". The notice on the authorised representative was again returned with the endorsement "Notice should be served on the assesses."

3. On the adjourned date, namely, 9-4-66, no one appeared but the matter was again adjourned to the 28th of May 1966, and fresh notices were issued for the adjourned date to the assessee. These were again served by affixation at a conspicuous place at his residential house in his village Baghpur Derl. Again no one appeared and the assessment was made ex parts.

4. The assessee preferred appeals against the assessment orders, as also filed a petition under Article 98 of the Constitution of 1962. The High Court held that the notices were duly served on the assessee and the authorised representative and that service on the latter was valid and proper.

5. The Income-tax Officer could, therefore, lawfully proceed ex parte.

6. The next contention of the assessee was that since the re-constitution of the charges of Commissioners of Income-tax of the Northern Zone had been effected by a notification issued under the signature of a "second Secretary" In contravention of the rules framed to regulate the transaction of business by the Central Board of Revenue the assessment was invalid. The relevant rule, it appears, required that "the orders and decisions of the Board may be Issued or notified over the signature of a Member of the Board or of the Secretary to the Board."

7. PLD 1966 SC 775). The High Court took the view that, since subsection (2) of section 5 of the Act, which authorised the Board of Revenue to appoint Commis--sioners of Income-tax for specified areas, did not provide that such appointments could only be made by a notification or a notified order, the notification was not necessary and, therefore, the question as to who issued the notification was immaterial.

8. We are of the view that the validity of the notification was not open to question merely became of the fact that it had been issued under the signature of a "second Secretary". There is nothing in the Act or in any one of the rules to show that a "second Secretary" does not come within the description of "the Secretary to the Board" mentioned in the relevant rule.

9. The decision relied upon is of no assistance, because, there the notification was Issued under the signature of a Section Officer who is not a Secretary. In the present case, the notification in question has been issued over the signature of a "second Secre--tary" presumably to the Board of Revenue and, therefore, the requirements of the rule have been complied with.

10. The learned counsel appearing in support of this petition has also reiterated the same arguments as were advanced before us in Civil Petition for Special Leave to Appeal No. 64-P of 1971 on the validity of the notices. We reject them on the same grounds as those given In our order in Civil Petition for Special Leave to Appeal No. 64-P of 1971 and only wish to add that in this case too the authorised representative actually accepted the notice issued for the hearing on the 20th January 1966, appeared and prayed for an adjournment. He returned the fresh notice issued for the adjourned date and did not appear. Thereafter substituted service was effected on the assessee as notices by registered post were being returned marked "gone away" from his village home. This clearly showed that he was avoiding service.

11. The second ground is also rejected, because, as already pointed out, there is no material on the record from which we can say that the person who described himself as the "second Secretary" was not acting as a "Secretary to the Board". It was for the petitioner to place adequate materials before to show that the second Secretary was not the Secretary to the Board of Revenue within the meaning of the rule referred to earlier. He has failed to do so. Therefore, his contention must fail.

12. We are also, for the reasons given in Civil Petition for Special Leave to Appeal No. 64-P of 1971, of the view that this writ petition too was misconceived and not maintainable. The petitioner should have been left to pursue his remedy by the appeal which he had already filed. He had elected first to follow that remedy. He should not, therefore, have been allowed to simultaneously pursue an alternative remedy under Article 98 of the Constitution of 1962.

13. This petition is accordingly dismissed.