SYED ASGHAR HAIDER, J.- The Multan Cantonment Board rented out/autioned certain properties belonging to it, located at Metro Plaza and Mall Shopping Centre Cantonment by public bidding during the years 1990- 91, 1991-92, 1993-94, 1995-96, 1996-97, 1997-98, 1999- 2000. According to respondent No. 5 the Board was required to collect tax under Section 5(7-A) of the Repealed Income Tax Ordinance, 1979. The issue was raised with the Board, but they refused to pay the tax pleading that shops were rented out and not auctioned. Thus, it was treated as assessee in default in terms of Section 52 of the Ordinance and the liability was determined for 3247 days (January, 1990 to December, 1998) and Rs. 25,54,548/- were assessed in this context, recovery was made to the extent to Rs. 19,28,580/- from the account of the Board. The Board termed this action as illegal and made representations to the higher authorities and also file an appeal before the Commissioner Income Tax (Appeals), the Commissioner, set aside the findings and directed that de-novo proceedings be made in this context. The petitioners feeling not satisfied with this order filed an appeal with the Income Tax Appellate Tribunal, Lahore,- which affirmed the findings of the Commissioner. The petitioner thereafter, filed a reference application with Income Tax Tribunal requesting that legal issues were involved as such the matter be referred to this Court for adjudication, later this application was withdrawn. Pursuant thereto the matter was agitated before respondent No, 5, who vide consolidated order dated 25.6.2003, assessed the petitioner liable for payment. Aggrieved thereof the petitioner has filed the present petition.
2. Learned counsel for the petitioner contended that the assessment has been wrongly made in the name of the Cantonment Executive Officer; Multan, who is civil servant belonging to Pakistan Military Lands and Cantonment Service and acts only as Cantonment Executive Officer of the Board, whereas the respondent had cause, if any, against the Cantonment Board. Therefore, the entire proceedings are illegal. He further submitted that all contracts in this context were signed by the President A/ice President and the petitioner has no nexus with it in personal capacity. Learned counsel also submitted that the Board has leased the properties and not sold them, therefore, the provisions of Section 50(7-A) of the Ordinance are not applicable to it, other issues which were argued related to forcible deduction of tax from the Board's account,-through coercive measure, the liability was assessed without associating the Board and Was based on a number of years', illegally through a mechanical order violating the directions issued by the Commissioner of Income Tax and the Tribunal. Much emphasis was. Laid on the fact that , the entire assessment to the extent of Rs. 25,54,548A is without substance and proof and likewise the coercive recovery to the extant of Rs. 19,28,580/- is illegal. Learned counsel has relied on Messrs Kamalia Sugar Mills Ltd., Kamalia Versus Superintendent Intelligence and Investigation (2002 P.T.D. 632), The Presiding Officer vs. Sadruddin Ansari and others (P.L.D. 1967 S.C. 569)., Murree Brewery Co. Ltd. Vs. Pakistan and 2 others (P.L.D. 1972 S.C. 279), Premier Cloth Mills Ltd., Lyallpur vs. The Sales Tax Officer and another (1972 S.C.M.R. 257), Usmania Glass Sheet Factory vs. Sales Tax Officer (P.LD. 1971 S.C 205), It, Col. Nawabzada Muhammad Amir Khan vs. The Controller of Estate Duty and two others- (P.L.D. 1961 S*G. '1.19), Chairman, Central Board of Revenue, Islamabad and 3 others vs. Messrs Pak-SaudL Fertilizers Lfcf (200I S.C.M.R. 777), Nagina Silk Mill, Lyallpur Versus The Income Tax Officer and another (P.LD. 1963 S.C. 322) grid Gatron (industries) Limited vs. Government of Pakistan and others (1999 S.C.M.R. 1072).
3. Learned counsel. For the respondents submitted that parawise comments clearly reflect that present petition is barred and not maintainable. He further submitted that the petitioner has chosen a forum and, therefore, he cannot now be granted the luxury of filing the Constitutional petition on the same subjects He has very emphatically raised objection the maintainability of the present petition and relied on the judgments reported as Mst. Kaniz Fatima through Legal Heirs vs, Muhammad Saleem and 27 others (2001 S.C.M.R. 1493), Khalid Mehmood vs. Collector of Customs (1999 S.C.M.R. 1881), Punjab Small Industries Corporation vs. Ahmad Akhtar Cheema (2002 S.CrM.R.
549) and MirZaman vs. Mst. Sheda and 58 others (2000 S!C.M.R. 1699).
4. I have heard the (earned counsel and also perused the impugned order, which clearly reflects that the assessm ent has been made for the years 1990-91, 1991-92 1993-94, 1995-96, 1996-97, 1997- 98, 1999-2000, it is also decipherable that assessment has been made in a consolidated manner (although the impugned order of assessment reflects year-wise tax ability and payment received).
The learned counsel for the petitioner stated that a sum of Rs. 19,28,580/- was forcibly recovered by the respondents from the petitioner's Bank question arises as to whether the tax had been paid year-wise or was it calculated in unison and forcibly recovered. This needs a thorough inquiry and appraisal of evidence, which is not possible in the present jurisdiction.
5. Likewise the impugned order also reflects that Cantonment Executive Officer, Multan Cantonment Board is the assessee, this presumption is not correct, the Cantonment Board is a legal, juristic entity and, therefore, has an independent status. Learned counsel for the petitioner has clearly distinguished between the Cantonment Board and the Executive Officer, this issue cannot be brushed aside so lightly as valuable rights of the parties are involved and it .Is a question of law and fact, which impacts the issuance of very notice, therefore, it would be only fair to permit the parties to substantiate their claim with reason and evidence, thus, the respondent has to re-assess the matter and determine as to whether the Cantonment Board and the Executive Officer are the same identities or not, this also needs detailed appraisal of evidence and adjudication.
6. It is also evident from the record that the proceedings conducted by respondent No. 5 were not in accordance with the directions given by the Commissioner of Income Tax and the Appellate Tribunal, it is an unalienable right of the petitioner to be heard and also that all legal and factual objection^ raised by him should be adjudicated and decided in accordance with law.
7. Thus, it is clear that the proceedings conducted by respondent No. 5 were not in consonance with law or for that matter even procedure. The petitioner raised fundamental legal issues and questions, which were not adjudicated by respondent No;
5. It is, therefore, essential that these matters be looked into, identified and thereafter be adjudicated and decided in accordance with law and legal principles.
8. The next important question Which needs to be adjudicated is whether a Constitutional petition is maintainable or not, ordinarily the bar raised by the respondents should have non-suited the petitioner, but here the circumstances are totally different. The petition arises of an order which is illegal, not only on the legal plane but is also violative of the direction issued by the income tax authorities themselves, thus, it is without jurisdiction. Therefore, it cannot sustain, this illegality eminently justifies intervention by this Court as it has jurisdiction to correct and rectify errors of law.
9. In this context I am fortified by Murree Brewery Cd. Ltd. Vs. Pakistan and 2 others (P.LD. 1972 S.C.
279), Premier Cloth Mills Ltd., Lyallpur vs. The Sales Tax Officer and another (1972 S.C.M.R. 257), Chairman, Central Board of Revenue, Islamabad and 3 others vs. Messrs Pak-Saudi Fertilizers Ltd.
(2001 S.C.M.R. 777) and Mst. Kaniz Fatima through Legal Heirs vs. Muhammad Salim (2001 SC.M.R.
1493), the Honourable Supreme Court of Pakistan observed as under:- "Art. I 99-Constitutional jurisdiction invoking of- Pre-conditions-Scope-Paramount consideration in exercise of Constitutional jurisdiction is to foster justice and right a wrong-Before ? Person can be permitted to invoke the discretionary power of a Court, it has to be shown that the order sought to be set aside has occasioned some injustice to the parties-Where the order does not work, any injustice to any party, rather the order cures a manifest illegality, then the extraordinary jurisdiction should not be allowed to be invoked".
Resultantly, this petition is allowed, the impugned order dated 25.6.2003, is set aside and the proceedings are remanded to respondent No. 5 with the direction to associate the petitioner with the proceedings and address all questions of law and facts raised by the petitioner and thereafter decide the matter on merits in accordance with law. No order as to costs.