SHAGUFTA BEGUM vs THE INCOME-TAX OFFICER, CIRCLE-XI, ZONE-B, LAHORE

ORDER

1. ' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought, against the dismissal of a Writ Petition filed by the petitioner. It had arisen out of a notice issued by the Income-tax Officer to the petitioner under section 65 of the Income Tax Ordinance for re-opening an earlier assessment order so as to make "re-assessm ent" on the ground that it had been "under assessed" and/or was "assessed at too low a rate".

2. ' This was objected to by the petitioner as without lawful authority. According to learned counsel the objection was not disposed of by a written order nor was there a proper hearing in this behalf; therefore, the grievance was directly agitated in the High Court through a Writ Petition. The same having been dismissed leave to appeal has now been sought.

3. ' The questions raised in this petition (Paragraphs (1) to (vii) and the one dealt with by the High Court in the impugned order, are not such which could not have been dealt with/commented upon by the Income Tax Officer in a proper regular hearing on the purported assumption of the jurisdiction under section 65 of the Ordinance. However, learned counsel has contended that in all such cases where a Tribunal lacks jurisdiction and this aspect is discoverable on the face of the record, it is permissible for an aggrieved person to go directly to the High Court against the issuance of a notice, without approaching the authority concerned in this behalf in the first instance.

4. ' Theoratically speaking it might be correct; mainly, because wastage of time spent before the departmental authorities could be avoided by expeditious disposal of the writ petition in the High Court and if the matter is brought higher up in the Supreme Court, it would still be a speedier remedy. We do not agree with this submission. In practice, it takes longer time than the normal departmental remedies. The learned counsel himself admitted that writ petitions if admitted are, many a, timer not disposed of for much longer period than is expected to be consumed before the Income Tax Authorities. For example in this very case the writ petition was filed in September 1984.

5. About five years have passed but the matter has not yet been disposed of. This has happened despite the dismissal of the writ petition in limine. Had it been admitted to hearing it might have taken much longer period to reach the Supreme Court. The decisions relied upon by the learned counsel would, therefore, not be applicable to the present conditions. It is accordingly in the interest of litigants themselves first to choose the speedier remedy with the Departmental Authorities and thereafter, if need be, invoke the extraordinary jurisdiction of the High Court.

6. ' This, however, would not apply to cases of mala fides, particulary when the allegation is that the departmental authorities on account of political or other reasons would either be not free to decide correctly or on account of their own departmental compulsions be prejudiced in rendering a particular verdict. In the present case there does not seem to be any such complaint against the departmental authorities. The question involved needs only normal adjudication of the petitioner's grievance.

7. ' Accordingly we consider it a fit case in which the petitioner would be well advised if he raises the pleas sought to be advanced before this Court, in the departmental forum in the first instance and also to pursue the normal channels of appeal/revision/reference to the higher departmental forums. The apprehension expressed by the learned counsel that the departmental authorities are likely to support the issuance of notice after this contest before the superior Courts, is unfounded at least at this stage. The learned Income Tax Officer having thought, prima facie, that he had the jurisdiction, issued the impugned notice. There would be nothing wrong in his hearing the party concerned on the relevant objections including that of his jurisdiction. He would not make it a question of personal prestige if he finds that the notice was issued without jurisdiction. On the other hand if he feels satisfied that he had the jurisdiction, same would apply to his such a determination accordingly. It is well known that a plea regarding the assumption of jurisdiction by a Tribunal or a Court is available to a litigant even when appearing before the highest Court in the country. It is, therefore, hoped and expected that when an objection in this behalf is raised before the learned Officer concerned, he would dispassionately examine it on its own merits and render a decision which he believes, bona fide, to be correct.

8. ' The only question which remains to be clarified is regarding certain observations and remarks in the impugned order of the High Court which 'might prejudice the now contemplated hearing by the departmental authorities. It is clarified that the writ petition could have been dismissed. On the same grounds as have prevailed with us for refusing to grant leave to appeal. Therefore, in the circumstances of this case we do consider it fit and proper to hold that the writ petition shall be deemed to have been dismissed, accordingly, on the aforesaid ground. The grounds mentioned in the impugned order, therefore, would not influence the determination by the departmental authorities and in this context shall be treated as non-existent.