REFERENCE NO.1 OF 1988, MADE BY THE PRESIDENT OF PAKISTAN UNDER ARTICLE 186 OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN vs NOT

ORDER

1. ' MUHAMMAD AFZAL ZULLAH, J. --Writ Petition against an Income Tax Assessment by Income Tax Officer was dismissed by the High Court by the following short order: - "The petitioner is aggrieved with the order of additional assessment made in pursuance of the provisions of section 65 of the Income Tax Ordinance by an Income Tax Officer. He has already filed an appeal before the Appellate Assistant Commissioner. As he had already availed of the alternate remedy this writ petition is dismissed in limine."

2. ' Leave to appeal having been sought, this Court passed interim orders on 23rd July, 1984, 29th July, 1984, 9th August , 1984, 12th August, 1984. 16th August, 1984, 21st August, 1984, 28th August, 1984 and 29th August, 1984.

3. ' They are very instructive in so far as the attitude of the respondent department is concerned.

4. ' They are, therefore, reproduced below:- "23-7-84: Notice to the A.-G. For the 29th of this month.

5. ' 29-7-1984: Adjourned to the 5th of August, 1 984, to enable the petitioner to, produce the person from whom he had purchased the shop which has been made the basis of enhancement of the assessm ent.

6. 9-8-84: Hafiz Muhammad Arif Dar petitioner has been assessed to Rs,1,93,000 as his income on the ground that he had enough money to purchase a shop on the Sarwar Road in Lahore Cantt. And on investigation the relevant Income-tax Inspector found that the vendors were fictitious persons and that this had been done to avoid levy of income-tax. I required the petitioner to produce the vendors namely Muhammad Ashfaq son of Haji Sardar Muhammad and Muhammad Mushtaq son of Ibrahim, so as to ascertain whether the finding of the In come-tax Inspector that the vendors were fictitious, was correct.

7. ' The petitioner has produced both the above-noted vendors whose identity has been verified through their Identity Cards which bear their photographs. Prima facie, it appears that the report of the income-tax Inspector, is wholly incorrect.

8. ' Mr. M.Z. Khalil, Advocate, appeared on behalf of Mr. Muhammad Ilyas, Standing Counsel for the Income-tax Department to submit that he (Mr. Ryas) has left for U.S.A. And the case may therefore' be adjourned to a date after the vacations.

9. ' Petitioners counsel, however, submits that in view of the fact that the allegation against the petitioner has been prima facie proved to be incorrect, the case may not be adjourned.

10. ' Let notice be issued to respondent for the 12th of this month, who may appear through a counsel engaged by the Department alongwith the relevant Inspector who had submitted the report on which action was taken against the petitioner.

11. ' No action shall be taken affirms the petitioner in the meanwhile.

12. ' Mr.. M.Z. Khalil, Advocate is directed to advise the respondent of the proceedings before this Court.

13. ' 12-8-84:, No one has turned for the respondent. Adjourned to the 16th of this month: ' 16-8-84: The matter was adjourned to be taken up at 1-30 p.m. Learned counsel for the petitioner is present alongwith the petitioner. Learned counsel for the respondent is, however, absent. The case is, therefore, adjourned to 21-8-1984.

14. ' 21-8-84: An official of the Cantonment Board be ordered to bring the latest PTI Form pertaining to property No,326-Sarwar Road Sadar, Lahore, on the next date of hearing, in order to enable this Court to ascertain the annual rent at which the said property is assessed.

15. ' To come up on 28-8-1984.

16. ' 28-8-84: Adjourned to tomorrow (29-8-1984) to enable the Inspector of the Cantonment Board to explain how the value of the place in question was calculated to be Rs,1,50,000 when the monthly rent of the house was Rs,100 per month.

17. ' 29-8-84: On instructions from the LT. 0 the learned counsel for the respondent submitted that the tax had been levied according to the value of the property as calculated by the Cantonment Board. However, I find that the property in question is assessed by the Cantonment Board at Rs,100 per month and as such the value- of Rs,1,50,000 as determined appears to be excessive and arbitrary. It would have been appropriate if, for fixing the value of the property, the Cantonment Board had followed the formula of "10 years rent", as done by the Wealth Tax Dept.

18. ' In this view of the matter the recovery of the tax amount is stayed till the decision of the main petition."

19. ' It is possible that in view of the aforequoted observations redress might have already been provided to the petitioner.

20. ' One of the conditions for grant of relief in writ jurisdiction of the High Court is that the petitioner before it should not have any alternative adequate remedy. In this case, a remedy by way of appeal, as mentioned in the impugned order, was such remedy. Therefore, it is correct that no relief could be granted to the petitioner under Article 199 of the Constitution.

21. ' But that does not mean that, in case the petitioner has not been allowed any relief by the departmental authorities (despite the observations by the Supreme Court) the petitioner would have no immediate remedy at all against the highhandedness of the department.

22. ' Amongst others he cap file a complaint and grievance application before the Federal Ombudsman, who can provide effective redress, in a case like the present one. That forum has several attributes of a Court in many aspects of its powers. It cans also irove in a matter promptly whenever so needed. At the same time it does not suffer from some of the handicaps, due to the technicalities of procedural nature, which operate as impediments or thwart such like action by the Courts. For example the limitation of non-availability of an alternate remedy in this case for the High Court under Art.1 99 of the Constitution, is not applicable to the said forum. Besides, the same being quasi-judicial it is also headed by a Judge of the Supreme Court; with similar powers to punish for contempt. In this context therefore, it can be safely concluded, that it can provide the alternate effective and adequate remedy to the petitioner also.

23. ' With the foregoing observations and remarks, leave to appeal is refused in the circumstances of this case, due to the technical hurdle faced by the petitioner in the High Court. He may file a complaint before the Ombudsman.