M/S. AMIN TEXTILE MILLS (PVT.) LTD. vs COMMISSIONER OF INCOME TAX & 2
This petition for leave to appeal is directed against the judgment of the High Court of Sindh, whereby a constitutional petition challenging the issuance of show-cause notices under Section 65 of the Income Tax Ordinance, 1979 was dismissed on the ground of maintainability due to the availability of an adequate statutory remedy. The core legal question revolves around whether the High Court correctly dismissed the constitutional petition against mere show-cause notices and whether the petitioner should have instead approached the hierarchy under the Income Tax Ordinance. The Supreme Court of Pakistan held that the mere issuance of notices under Section 65 does not render them invalid, and the High Court correctly observed that aggrieved parties should first exhaust remedies provided under the relevant statute rather than bypassing them to invoke constitutional jurisdiction. The petition for leave to appeal was accordingly dismissed and leave declined, while setting aside the cost imposed by the High Court.
- Whether a constitutional petition is maintainable against the mere issuance of show-cause notices under Section 65 of the Income Tax Ordinance, 1979?
- Should an aggrieved party bypass the statutory remedies provided under the Income Tax Ordinance to invoke the constitutional jurisdiction of the High Court?
- Does the issuance of a notice under Section 65 of the Income Tax Ordinance, 1979, without more, render it invalid or void ab initio?
- Section 65, Income Tax Ordinance 1979
- Section 65(2), Income Tax Ordinance 1979
- Section 62, Income Tax Ordinance 1979
- Section 132, Income Tax Ordinance 1979
- Section 107(5), Income Tax Ordinance 1979
IRSHAD HASAN KHAN, J.- This petition for leave to appeal is directed against the judgment, dated 8- 12-1998 of the High Court of Sind 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 ah initio void, illegal, arbitrary, unwarranted and without jurisdiction as the condition precedent as laid down in sub-section (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 sub-section (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 tiling a Constitution petition. Apart from the bald assertion that the impugned order is void ah initio there is nothing on record to substantiate the above plea. In the case of A1-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.