' RIAZ AHMAD KHAN, J. --- This judgment is directed to dispose of instant writ petition alongwith following petitions:---
(i) W.P. No, 2413 of 2009, re: Pakistan Tobacco Company Limited, Islamabad v. Addl. Commissioner (Unit-11) Taxation Officer, Large Tax Payers Unit, Islamabad;
(ii) W.P. No, 2414 of 2009, re: Pakistan Tobacco Company Limited, Islamabad v. Addl. Commissioner (Unit-II) Taxation Officer, Large Tax Payers Unit, Islamabad;
(iii) W.P. No, 2415 of 2009, re: Pakistan Tobacco Company Limited, Islamabad v. Addl. Commissioner (Unit-II) Taxation Officer, Large Tax Payers Unit, Isla,- ,t, id;
(iv) W.P. No, 2416 of 2009, re: Pakistan Tobacco Company Limited, Islamabad v. Addl. Commissioner (Unit-II) Taxation Officer, Large Tax Payers Unit, Islamabad;
(v) W.P. No, 660 of 2011, re: Pakistan Telecommunication Company Ltd., Islamabad v. Addl.
Commissioner Inland Revenue (Audit!), Large Tax Payers Unit, Islamabad and another;
(vi) W.P. No, 1231 of 2011, re: Pakistan Mobile Communication Ltd., Islamabad v. Addl. Commissioner Inland Revenue (Audit-II), Large Tax Payers Unit, Islamabad and another,
(vii) W.P. No, 1232 of 2011, re: Pakistan Mobile Communication Ltd., Islamabad v. Addl. Commissioner Inland Revenue (Audit-II), Large Tax Payers Unit, Islamabad and another
(viii) W.P. No, 1287 of 2011, re: M/s. Pak Telecom Mobile Ltd., Islamabad v. Federal Board of Revenue through its Chairman and 2 others;
(ix) W.P. 1288 of 2011, re: M/s. Pak Telecom Mobile Ltd., Islamabad v. Federal Board of Revenue through its Chairman and 2 others;
(x) W.P. No, 1349 of 2011, re: M/s. Link Direct International (Pvt.) Ltd., Islamabad v. Addl. Commissioner, Inland Revenue (Audit-11), Large Tax Payer Unit, Islamabad and another;
(xi) W.P. No, 1550 of 2011, re: M/s. Link Direct International (Pvt.) Ltd., Islamabad v. Addl.
Commissioner, Inland Revenue (Audit-1), Large Tax Payer Unit, Islamabad and another;
(xii) W.P. No, 1703 of 2011, re: M/s. Pakistan Mobile Communication Ltd., Islamabad v. Commissioner Inland Revenue (Audit), Large Tax Payers Unit, Islamabad and another; xiii) W.P. No, 3302 of 2011, re: M/s. Link Direct International (Pvt.) Ltd., Islamabad v. Addl.
Commissioner, Inland Revenue (Audit-II), Lahore Tax Payer Unit, Islamabad and another;
(xiv) W.P. No, 3382 of 2011, re: M/s. Pakistan Mobile Communication Ltd., Islamabad v. Addl.
Commissioner, Inland Revenue (Audit-II), Large Tax Payer Unit, Islamabad and another;
(xv) W.P. No, 102 of 2012, re: M/s. Telenor Pakistan (Pvt.) Ltd., Islamabad v. Federation of Pakistan through M/o Finance, Islamabad and 3 others;
(xvi) W.P. No, 103 of 2012, re: M/s. Telenor LDI Communications (Pvt.) Ltd., Islamabad v. Federation of Pakistan through Mb Finance, Islamabad and 3 others;
(xvii) W.P. No, 138 of 2012, re: PTCL, Islamabad v. Addl. Commissioner Inland Revenue (Audit-I) Large Tax Payers Unit, Islamabad and another; and (xviii) W.P. No, 750 of 2012, re: M/s. MND Exploration & Production Ltd., Islamabad v. Federation of Pakistan through the Secretary Revenue Division M/o Finance and 3 others.
2. The petitioners, in all the petitions, were issued Show-Cause Notices by the Addl. Commissioner, Taxation Officer, Large Taxpayer Unit, Islamabad; the said Show-Cause Notices were issued under Section 122(9) read with Section 122(5A) of the Income Tax Ordinance, 2001. According to the petitioners, they had filed returns' under Section 120 of the Income Tax Ordinance, 2001. The 'returns' filed by them were to be taken as 'Assessment Orders' issued by the Commissioner of Income Tax.
3. Grievance of the petitioners is that since under Section 120 of the Ordinance, the Assessment Orders were to be passed by the Commissioner of Income Tax; so, the Addl. Commissioner had no authority to issue Show-Cause Notices for amendment of the Assessment Orders, passed by the Commissioner. Hence, all these petitions challenging Show-Cause Notices were filed before this Court.
4. Sardar Ahmed Jamal Sukhera, Advocate; for the petitioners (in W.P. Nos. 2412, 2413, 2414, 2415,.2416 of 2009, 660/2011, 138/2012) submitted that under Section 120 of the Income Tax Ordinance, 2001 the returns submitted by the taxpayers shall be taken as Assessment Orders issued by the Commissioner; so, even the Commissioner Income Tax has no power to amend his own order. The learned counsel, relying on the case-law, reported as 2003 PTD 734, 2009 PTR 23 (Supreme Court of Pakistan, 2001 PTD 1467 submitted that the powers of amendment as provided under Section 122(5A) of the Income Tax Ordinance, 2001 is a power of revision and the power of revision cannot be exercised by the same authority, who has passed the original order. Since Section 122(5A) empowers the Commissioner to revise his own order, therefore, the same is violative of Article 10 of the Constitution of the. Islamic Republic of Pakistan as the same is against 'due process of law'. The learned counsel further submitted that Section 210 of the Income Tax Ordinance, 2001 has been amended by the Finance Act, 2002 and provides that the Commissioner may delegate all or any of his powers or functions to any officer of Inland Revenue subordinate to the Commissioner; sub-section (1A) of Section 210 ibid, provides that the Commissioner shall not delegate the powers of amendment of assessment, to any Officer below the rank of Addl.
Commissioner. According to the learned counsel, since the powers of amendment have been provided in Section 122(5A), which involves application of mind, scrutiny of record/appreciation of facts & law and an opportunity to hear the taxpayer; so, these functions cannot be delegated to any other person/officer. The learned counsel further submitted that if it is presumed that the Commissioner could amend the Assessment Orders, even then delegation of powers to the Addl.
Commissioner was illegal; furthermore, under Section 210(1A) ibid the Commissioner can delegate his powers of amendment to Addl. Commissioner, but cannot delegate his functions to the Addl.
Commissioner; so, it would be an absurd idea that the functions are to be performed by the Commissioner and powers are to be exercised by the Addl. Commissioner. The learned counsel also submitted that under Section 122(5A) of the Income Tax Ordinance, 2001 the powers of amendment vested with the Commissioner are on the basis of his personal examination and consideration; so, even if it is presumed that he can amend assessment order even then such powers cannot be delegated further.
5. Mr. Nasim Sikandar, Advocate, for petitioners (in W.P. Nos. 1287 & 1288) submitted that in the Income Tax Ordinance, 2001 pivotal role has been assigned to the Commissioner Income Tax; whereas, prior to the Income Tax Ordinance, 2001 the situation was totally different; he submitted that the Commissioner Income Tax has been given all the powers. He prayed that he should be permitted to amend the petition, so as to enable him to challenge vires of the Ordinance. He, however, also adopted arguments advanced by Sardar Ahmed Jamal Sukhera, Advocate. Other learned counsel for the petitioners also adopted the afore-mentioned arguments.
6. On the other hand, learned counsel for the respondents submitted that the writ petitions are not maintainable, as only Show-Cause Notices have been issued and the petitioners have got alternate remedy of placing their case before the Income Tax Authorities. It was further submitted that the law itself provides that the Commissioner an amend assessment order and can also delegate his authorities to Addl. Commissioner for amending assessment order, deemed to be passed by the Commissioner. So, there is no illegality in Show-Cause Notices, issued to the petitioners.
7. I have heard learned counsel for the parties and have also perused the record.
8. The first objection of learned counsel for the petitioners is that the Commissioner of Income Tax cannot amend his own assessm ent orders. In this respect, Section 120 of the Income Tax Ordinance, 2001 is relevant; its relevant portion is reproduced herein below:--- "120. (1)(a)..
(b) the returns shall be taken for the purposes of this Ordinance to be an assessment order issued to the tax payer by the Commissioner on the day the return was furnished."
' The above-said section of law is deeming provision and by fiction of law converts the returns filed by the tax payers into assessm ent order. Sub-section (5A) of Section 122 ibid empowers the Commissioner to amend or further amend an assessment order and the said provision is as follows:--- "122. [(5A) Subject to sub-section (9), the Commissioner may amend, or further amend, an assessment order, if he considers that the assessment order is erroneous insofar it is prejudicial to the interest of revenue.
' Admitted position in the present case is that the Commissioner before amending his own order has to make up his mind that the assessment order is erroneous and prejudicial to the interest of revenue. The Commissioner cannot reach this conclusion without analyzing the facts available on the record and without conscious application of his mind.
9. The objection that the powers to scrutinize the record and application of mind as provided in sub-section (5A) of Section 122 ibid is a power of revision and this power cannot be exercised by the authority, who has passed the original order, is not correct. There is no doubt that in 2006 PTD 734, it was held that the powers contained in 122(5A) ibid is a power of revision. However, this fact should be kept in view, that the Income Tax Ordinance, 2001 by itself does not treat this power as revision. The power of revision is not available in the Income Tax Ordinance, 2001. The exercise of powers may be in the nature of powers being exercised in revision, but that would not make Section 122(5A) ibid a section relating to revision. If in the statute, a provision is not available, then by implication or even by interpretation of law, the same cannot be inserted in the statute. It can be said that powers under Section 122(5A) ibid are to be exercised as if the Commissioner is revising his own order, but the ordinary consequences attached to revision would not apply to an order passed under Section 122(5A) ibid; ordinarily revisional powers cannot be exercised by the authority, who has passed the original order; but, this provision would not apply to an order under Section 122(5A) ibid, because the Income Tax Ordinance, 2001 does not treat it as revision. Since, the provision by itself is simple and clear, therefore, ordinary meaning is to be given to Section 122(5A) and there is no requirement to give it different meanings by way of interpretation and reference to other judgment. It is therefore, held that under Section 122(5A) the Commissioner had the authority to amend the Assessm ent Orders.
10. As far as delegation of powers is concerned, sub-sections (1) and (1A) of Section 210 ibid, being relevant are reproduced herein below:--- "210. Delegation.-- (1) The Commissioner [subject to sub-section (1A),] may, by an order in writing delegate to any [Officer of the Inland Revenue, subordinate to the Commissioner] all or any of the powers or functions conferred upon or assigned to the Commissioner under this Ordinance, other than the power of delegation.
(1A) The Commissioner shall not delegate the powers of amendment of assessment contained in sub-section (5A) of Section 122 to [an officer of Inland Revenue below the rank of Additional Commissioner Inland Revenue.]"
' Sub-section (1A) of Section 210, is to be read with Section 122(5A) of the Ordinance. The power of amendment is provided in Section 122(5A) and this section does not bifurcate the power of amendment into powers and functions. The exercise of this power is only subject to Section 122(9) and it has been provided in sub-section (5A) as well as in Section 210(1A) ibid. Section 210 (1A) provides that the Commissioner can delegate his powers of amendment as provided in sub- section (5A) of Section 122, to Additional' Commissioned and since sub-section (5A) provides that the powers of amendments can be exercised only subject to sub-section (9); so, the functions of the Commissioner Income Tax, to provide an opportunity of hearing to the tax payers also stands delegated to the Addl. Commissioner.
11. The objection that the Commissioner cannot delegate his authority to his subordinate again is not correct for the reason .That Section 211 of the. Income Tax Ordinance, 2001 provides that the powers exercised by the Addl. Commissioner shall be deemed to be exercised by the Commissioner. As such by a deeming clause, the law provides that the order of Addl.
Commissioner shall be considered as passed by the Commissioner. The conclusion thus would be that when the Commissioner delegates powers to amend the assessment to the Addl.
Commissioner; the said powers would include the functions of the Commissioner i,e, scrutiny of the assessm ent, proper application of mind and then amending the Assessment Order.
12. As far as the objection regarding maintainability is concerned, the issue stands settled by the Hon'ble Supreme Court of Pakistan, in case titled Commissioner of Income' Tax v. M/s. Eli Lilly Pakistan (Pvt.) Limited, reported as 2009 SCM R 129 wherein it was held that the tenden\cy to bypass the remedy provided in the relevant statute and to pres-s into service Constitutional jurisdiction of the High Court was to be discouraged, through in certain cases invoking of such jurisdiction instead of availing it the statutory remedy was justified e.g. When the impugned order/action was palpably without jurisdiction and/or mala fide.
13. Since, the petitioners in the present cases had challenged vires of law, which could not be raised before the Commissioner Income Tax; so, these writ petitions were maintainable.
14. As far as prayer regarding amendment is concerned, the learned counsel had referred to the aforementioned sections i,e, 122(5A) and 210 of the Income Tax Ordinance, 2001 and these sections of law have already been discussed in the judgment and any further amendment would not serve no useful purpose. Accordingly, the CMs for amending the petitions are dismissed.
15. In Writ Petition No, 1288/2011 re: M/s. Pak Telecom Mobile Limited, Islamabad v. Federal Board of Revenue, through its Chairman, Islamabad and 2 others, learned counsel for the petitioner raised objection that Assessm ent Order passed by the Assessing Officer was time-barred. Furthermore, the income of the petitioner was not properly assessed by the Assessing Officer and the assessm ent made was not in accordance with law. These point raised by the petitioner, would not render the Show-Cause Notice as without jurisdiction and in addition to that these points can be agitated before the Income Tax Authorities. The petitioner has alternate remedy and in presence of alternate remedy, writ cannot be issued. In case re: M/s. Amin Textile Mills (Pvt.) Ltd. v.
Commissioner of Income Tax & 2 others, reported as 2000 SCM R 201, it was held that Assessee in the first instance was to approach the hierarchy of the forums provided for under the Income Tax Ordinance, 1979, instead of filing a Constitutional petition challenging the order of Income Tax Officer. Tendency to bypass the remedy provided under the relevant statute and to press into service Constitutional jurisdiction of the High Court was deprecated. In case titled Shagufta Begum v. The Income Tax Officer, Circle-XI, Zone B, Lahore, reported as 1989 PTD 544 [Supreme Court of Pakistan], it was held that questions raised in petition were not such which could not have been dealt with/commented upon by the Income-tax Officer in a proper regular hearing on the purported assumption of the jurisdiction under Section 65 of the Income Tax Ordinance, 1979, therefore, departmental remedy being speedier, it was in the interest of litigants themselves first to choose the speedier remedy with departmental authorities. Similarly, in case titled Hafiz Muhammad Arif Dar v. Income Tax Officer, reported as PLD 1989 S.C. 109, it was held that where a remedy by way of appeal was available, no relief could be granted to the petitioner under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. The petitioner has got alternate remedy, where the points raised in the petition can be agitated; so, the petition is not maintainable.
16. In view of the afore-mentioned findings, all the writ petitions are dismissed.