IFTIKHAR MUHAMMAD CHAUDHRY, CJ.-Leave to appeal was granted by this Court on 7th July, 2000 to consider the following questions:-
(i) Whether the Income Tax Appeal filed on 16.6.1998 against the original order dated 5.5.1996 was time-barred and could be lawfully maintained?
(ii) Whether the learned High Court failed to take into consideration various provisions of the statute and the judgments rendered by this Court on the questions of law involve? and
(iii) Whether the impugned judgment can be sustained in law in the peculiar facts and circumstances of the case?
2. Precisely stating the facts of the case are that the assessee/respondent declared his income in the annual return for the year 1997-98 in which income tax was levied in terms of Section 2(12) of the Income Tax Ordinance, 1979 (hereinafter referred to as the Ordinance). The order of assessm ent was challenged by the respondent in appeal but could not succeed within the hierarchy of Income Tax Ordinance, as second appeal filed by respondent was dismissed on 5th May, 1996. No Reference against and subjected the same to tax. The order of assessment Was challenged by respondent L>y way of first appeal, which failed, compelling him to approach Income Tax Appellate Tribunal hereinafter referred to as the "tribunal") by way of second appeal, which was also dismissed on 5th May, 1996. No Reference against it was filed in terms of Section 136 of the Ordinance. - Subsequent thereto assessee filed an application for setting aside th4e judgment of the Tribunal under Rule 22 of the Income Tax Income Tax Authorities particularly the order dated 5th May, 1996 arid the other orders passed on the basis of the applications moved. We are of the opinion that there was no error apparent or floating on the face of the record or the judgment warranting exercise of writ jurisdiction by the High Court.. Therefore, for such reasons the competent authorities rightly dismissed the application filed by the respondent under Rule 22 of the Rules on 20th May, 1997. Surprisingly, the respondent instead of challenging this order and seeking remedy before the appropriate forums moved an application for rectification knowing well that no error apparent or floating on the face of the record was identifiable for exercise of Constitutional jurisdiction. Therefore, we are. Of the opinion that it was not a fit case where the High Court should have exercised Constitutional jurisdiction,, that too, by converting an appeal into a Constitutional petition after a considerable delay and ignoring the fact that the order dated 5th May, 1996 had achieved finality. Assuming for the sake of arguments that there was some illegality in the impugned order, as claimed and pointed out by the respondent, therefore, he should have, challenged the same before the proper forum instead of waiting for a long time and invoking the writ jurisdiction of the High Court.
7 For the foregoing reasons we are of the opinion that the learned High Court should not have converted the time-barred appeal .Into a Constitutional petition for the purpose' of considering the case , of the respondent on merits as the impugned judgment/order had attained finality much before filing of the appeal before the High Court.
7, Thus for the foregoing reasons the appeal is allowed and the impugned ..Judgment of the High Court is set . Aside with no order as to costs.