Messrs H.M. ABDULLAH vs THE INCOME TAX OFFICER, CIRCLE V, KARACHI and 2

' MUHAMMAD AFZAL LONE, J.-- Leave to appeal was granted by this Court to examine the question: "Whether the Income-tax Officer after having satisfied on the basis of the reply and the documents submitted by the petitioner that there was no case for re-opening of the assessment of the above three assessm ent years, could have proceeded to frame fresh assessment orders under the direction of Inspecting Assistant Commissioner of Income-tax, or whether if the Inspecting Assistant Commissioner wanted to re-open the assessment, he was required to invoke section 66- A of the Ordinance if warranted by the facts of the present case and law."

2. The necessary facts, in brief, are that the appellant whose assessment for the assessment years 1982-83, 1983-84 and 1984-85 had been completed under Self-Assessment Scheme was on 23-4- 1987 issued separate notices for each assessment year under section 65 of the Income-tax Ordinance, 1979, by the Income-tax Officer, on the ground that his income had been under- assessed. It appears that later on the successor Income-tax Officer sent a letter to the Inspecting Assistant Commissioner alongwitli his comments on the points on the basis whereof his predecessor intended to reopen the assessments and sought his leave to drop the proceedings commenced under section 65 ibid, to which the Inspecting Assistant Commissioner did not agree and directed the Income-tax Officer to proceed with the re-assessments. The appellant thereupon invoked the Constitutional jurisdiction of the Sindh High Court, praying that the notices under section 65 and all proceedings conducted on the footing thereof be declared as null and void and of no legal effect.

3. The impugned judgment reflects that various contentions raised on behalf of the appellant to assail the validity of the notices failed. It is, however, on the record that during the pendency of the Constitutional petition, in pursuance of the notices aforesaid, the Income-tax Officer passed reassessm ent orders. The validity of these orders was also brought under challenge by the appellant on the ground that the Income Tax Officer after consideration of the appellant's reply to the notice and examination of the record had formulated a definite opinion that the notices in question were uncalled for, meaning thereby that in his view the income for the three assessment years did not suffer from under-assessment but he was obliged to embark upon re-assessment under the direction of the Inspecting Assistant Commissioner. The argument was that the re- assessm ent orders were not the result of independent application of mind by the Income-Tax Officer but rendered under the dictates of the Inspecting Assistant Commissioner and thus could not be sustained. On behalf of the Income Tax Department, reference made by the Income Tax Officer to the Inspecting Assistant Commissioner and the directions given by the latter requiring the Income Tax Officer to proceed with the re-assessement, were sought to be justified on the rectitude of section 7 of the Income Tax Ordinance, 1979, which ordains that:- "In the course of ' any proceedings under this Ordinance, the Income Tax Officer may be assisted, guided or instructed by any other income-tax authority to whom he is subordinate or any other person authorised in this behalf by the Central Board of Revenue."

' In construting section 7, the High Court disagreed with the stand taken up on behalf of the department and maintained:-- "Section 7 seems to be a general provision provided to seek guidance and instructions in cases of complicated nature where the ITO is not able to understand or decide the case in proper manner.

There may be cases in which the assessing officer may feel difficulty and to resolve that difficutly section 7 has been introduced which is a completely new section and did not find place in the Income-tax Act, 1922. The procedure provided in section 7 has to be exercised in a conscious manner. The authority should realise that the assessment proceeding is of quasi-judicial in nature and it is possible that the Income Tax Officer may seek assistance or guidance from his superior who may be revisional or appellate authority and in such circumstances the very purity and sanctity of the hierarchy which provides for original and appellate jurisdiction is completely to mishit. If the Income Tax Officer before making the assessment seeks direction from his superiors and on their direction passes the assessment order then in such circumstances the appellate and revisional jurisdiction will be completely meaningless. This could never be the intention of the legislature and that is why section 7 has to be interpreted in a restricted manner. It is only in difficult and complicated cases that guidance may be sought before any assessment order has been passed or before the ITC has formed a definite opinion . Although he had sought approval for reopening the case there is no provision which provides for seeking approval while framing the assessm ent order."

4. As a necessary corollary of these observations, the learned Judges held that by virtue of the direction issued by the Inspecting Assistant Commissioner to the Income Tax Officer requiring him to frame reassessm ents, an illegality crept into the reassessment orders, which together with other findings founded on the notices were rendered void. Resultantly, the reassessment orders were set aside and a direction given that fresh assessment orders be passed by some other Income Tax Officer. The High Court's jtidgment dated 2v-12-1990 has been assailed before us by the assessee.

5. It has been noticed that during the pendency of the writ petition, the notices under section 65 were acted upon and the Income Tax Officer passed the assessment orders. We may observe that these orders could have been challenged through appeal before the Appellate Assistant Commissioner and then in second appeal before the Income Tax Appellate Tribunal. Further on a question of law, a reference also lay before the High Court. As a matter of fact all the points urged before the High Court in its Constitutional jurisdiction could be raised in the reference application under section 136 of the Income Tax Ordinance, 1979. It is clear to us that for all intents and purposes on the passing of the assessment orders by the Income Tax Officer, the writ petition became infructuous, as an alternate remedy in terms of Article 199 of the Constitution was available to the appellant. Unfortunately, the High Court's attention was not drawn to this aspect of the matter. There is no gainsaying that Income Tax 01 finance is a complete code in itself which creates rights in favour of an assessee, and in certain circumstances in favour of the Revenue as well, and also provides remedy for redress of the grievances of the aggrieved party. In the circumstances of the case, the appellant was not entitled to invoke the Constitutional jurisdiction of the High Court and bypass the remedy available under the Income Tax Ordinance. Reference in this connection may be made to the following observations appearing in Commissioner of Income Tax v. Hamdard Dawakhana (Waqf), Karachi PLD 1992 SC 847 at p. 861:-- " in cases where any party resorts to statutory remedy against an order he cannot abandon or bypass it without any valid and reasonable cause and file Constitution petition challenging the same order. Such practice, in cases where statute provides alternate and efficacious remedy up to High Court, cannot be approved."

6. For the foregoing reasons alone, without going into the merits of the case, this appeal is liable to be dismissed. However, before parting with the case we feel it appropriate to comment upon the interpretation put by the High Court on section 7 of the Ordinance. We may say with respect that the High Court is not right in observing that there was no provision in the Income tax Act, 1922 parallel to section 7 ibid. We find that section 5 (7-B) of the Income-tax Act, 1922 introduced therein by Act XX of 1958 is para materia on section 7. In this respect the scheme of the Ordinance is not materially different than the one envisaged by the Act. It seems to us that the impugned judgment is not alive to the distinction maintained between the nature of the function assigned under the Ordinance to the Inspecting Assistant Commissioner and the Appellate Assistant Commissioner.

The authorities under the Income Tax Ordinance are classified into two groups, namely, administrative and quasi-judicial. The former looks after the administration and the latter exercises quasi-judicial powers. The administrative side includes the Income Tax Officer, Inspecting Assistant Commissioner, Commissioner of Income Tax, Regional Commissioner of Income Tax and the Cental Board of Revenue. On the quasi-judicial side fall the Income Tax Officer as an Assessing Officer, the Appellate Assistant Commissioner, the Income Tax Appellate Tribunal and the Commissioner of Income Tax vested with the revisional powers. The Income Tax Officer is not subordinate to the Appellate Assistant Commissioner as he does not hold any administrative control over him; such control is exercised only by the Inspecting Assistant Commissioner and the other higher authorities on the administrative side. Under law only the Inspecting Assistant Commissioner and other administrative authorities to whom the Income Tax Officer is subordinate are empowered to render assistance and guidance to the Income Tax Officer or issue instructions to him and there is no room for exercise of such powers by the Appellate or Revisional authorities.

The High Court seemingly has mixed up the functions of the Inspecting Assistant Commissioner with that of Appellate Assistant Commissioner and the revisional authority. 'We agree with the learned Judges that as a general rule an authority in whom discretion is vested under provisions of Statute cannot bargain away or fetter its powers. The position is however different when such fetters are authorized by the Statute itself. Reference in this connection may be made to the following observations appearing at page 588 in "Constitutional and Administrative Law" by S.A. De Smith, Second Edition:--- "One authority cannot lawfully act under the dictation of another unless the other is a superior in the administrative hierarchy or is empowered by law to give instructions to it."

' In the course of hearing of this appeal our attention was also drawn to Al Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal (1993 SCM R 29) in which section 7 has been dealt with, but we notice that the decision therein is largely rested on the observations made in the judgment impugned before us.

' With the above observations, this appeal is dismissed, leaving the parties to bear their own costs.