AMIN TEXTILE MILLS (PVT.) LTD. vs COMMISSIONER OF INCOMETAX and 2

' IRSHAD HASAN KHAN, J.---This petition for leave to appeal is directed against the judgment, dated 8-12-1998 of the High Court of Sindh at Karachi, whereby Constitution Petition No.D-1353 of 1997, filed by the petitioners against issuance of show-cause notices under section 65 of the Income Tax Ordinance, 1979 (hereinafter referred to as the Ordinance), was dismissed with the following observation:-- "Upon the above discussion, we have come to the conclusion that the Constitutional petition is misconceived and is not maintainable as the petitioner has ample remedy available to him in case an adverse order is passed on the basis of the impugned show-cause notices. Accordingly, this petition is dismissed with costs together with the miscellaneous application therein."

2. Mr. Rehan Hasan Naqvi, learned Advocate Supreme Court for the petitioners vehemently contended that the learned Division Bench of the High Court had erred in not appreciating that the impugned notices were ab initio void, illegal, arbitrary, unwarranted and without jurisdiction as the condition precedent as laid down in subsection (2) of section 65 of the Ordinance, did not exist in petitioners' case, inasmuch as, no definite information subsequent to the assessment orders passed under section 62/132 of the Ordinance, had come in possession of respondent No.3. He further argued that the learned Judges in the High Court also erred in holding that the provisions of subsection (5) of section 107 of the Ordinance had been correctly invoked although the assessm ent orders were passed under sections 62/132 of the Ordinance to give effect to the order of the learned Commissioner of Income Tax (Appeals), dated 1-2-1994, passed in Appeals Nos.97, 98 and 99 of 1993. It was finally contended that the very fact that the Constitution petition had been admitted to a regular hearing, constituted a prima facie case in favour of the petitioners, therefore, in the facts and circumstances of the case and the explanation offered by the petitioners, the impugned notices should have been quashed.

3. After hearing the learned counsel for the petitioners at some length we may observe that simpliciter the factum that notices under section 65 of the Ordinance had been issued, would not render them invalid or void. There is no material on record to show that the competent Authority failed to apply its independent mind to the facts of the case before issuing notices. Be that as it may, the High Court, was right to observe that the petitioner should, in the first instance, approach the hierarchy of the forums provided for under the Ordinance instead of filing a Constitution petition. Apart from the bald assertion that the impugned order is void ab initio there is nothing on record to substantiate the above plea. In the case of Al Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal (1993 SCM R 29), this Court discouraged the tendency to bypass the remedy provided under the relevant statute to press into service Constitutional jurisdiction of the High Court.

4. Be that as it may, the petitioners shall be at liberty to raise whatever pleas available to them against the impugned notices before the Income Tax Authorities. We have no doubt in our minds that any objection raised by the petitioners against the impugned notices shall be duly considered and disposed of in accordance with law before any adverse order is passed by the concerned authorities, without prejudice to any observations made in the impugned judgment as well as this order. However, in the circumstances of the case, imposition of cost is it set aside.

5. With the above observation, the petition is dismissed and leave is declined.