' SHAHID JAMIL KHAN, J. --- Assessm ent order dated 24.12.2014 ("impugned assessment order") passed under Section 122(1)/122(5) of Income Tax Ordinance, 2001 ("Ordinance of 2001") is assailed through this petition.
2. Mr. Muhammad Ilyas, Advocate Supreme Court, has entered appearance on behalf of respondent No, 3 and informed, with permission of Court, that this is second petition on the same subject. He explains that earlier W.P. No, 34358 of 2014 was dismissed (vide order dated 29.12.2014) for the reason that the impugned assessment order had already been passed, therefore, the petitioner was advised to approach appellate forum available under the law.
3. Confronted with this situation, learned counsel for the petitioner submits that this fact is not concealed in the petition, however, copy of the order, in earlier writ petition, could not be appended due to non-availability. He argues that second writ petition is not prevented by the earlier decision because learned Single Bench had directed to challenge the assessment order in accordance with law. He submits that petitioner was denied fair trial as popper opportunity of being heard was not provided, which is violative of Article 10A of Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution"). He adds that instant petition is filed for enforcement of fundamental right, which cannot be abridged under sub-Article (2) of Article 199 of the Constitution.
' It is apprised that in response to show-cause notice under Section 122(9) of the Ordinance of 2001, dated 08.12.2014, an application for adjournment was moved on 15.12.2014, which was allowed and case was fixed for hearing on 23.12.2014. Another application for extension of time was moved on that date. Thereafter the show-cause notice was challenged in earlier writ petition wherein learned counsel for the department (Mr. Muhammad Ilyas Khan, Advocate) was directed to seek instructions and case was kept in waiting, to be taken up after the break. It was informed, after the break, that assessm ent order dated 24.12.2014 (the impugned order) had already been passed.
Learned counsel submits that the assessment order passed, without providing opportunity of being heard to the petitioner, was in violation of fundamental right. He has relied on Commissioner Inland Revenue, Legal Division, Bahawalpur v. Zulfiqar Ali (2012 PTD 964) and Muhammad Aftab Sultan through Authorized Agent v. Government of Pakistan, Ministry of Finance through Secretary Finance & 7 others (2014 PTD 1959) in support of his arguments:, It is further. Submitted that the impugned order is tainted with mala fide on facts as no order was passed on second application for adjournment. The petitioner was taken by surprise when it was informed, in the Court, that impugned order had been passed. On strength of judgment reported as Syed Allah Dost v. Haji Muhammad Alam and 12 others (PLD 1987 Quetta 235), it is submitted that this Court can issue writ of certiorari on mala fide of facts.
4. Mr. Muhammad Ilyas Khan, Advocate, in reply, has relied on the judgment by apex Court in Income-Tax Officer and another v. M/s. Chappal Builders (1993 SCMR 1108) to submit that after passing of an assessm ent order, the appropriate remedy is before the statutory appellate forum and writ petition is not maintainable.
' Learned counsel for the petitioner, at this stage, has relied on Commissioner of Income Tax v.
Messrs Eli Lilly Pakistan (Pvt.) Ltd. (2009 SCMR 1279) to submit that writ petition is competent.
5. Heard learned counsel for the parties, record perused.
6. Though petitioner has mentioned the fact of filing earlier writ petition in its paragraph No, 8, yet the., certificate, signed by learned counsel, at the bottom of this petition is silent about it.
' Perusal of order 29.12.2014 in earlier petition (W.P. No, 34358 of 2014) confirms the facts, as argued by !Earned counsel for the petitioner, however, its paragraph No, 3 reveals that grounds taken in this petition were also taken in earlier writ petition. .t was urged, in the earlier writ petition, that department acted with undue haste in passing the impugned assessment order and the petitioner was condemned unheard despite written applications for grant of adjournments. The judgment in Zulfiqar Ali's Case (supra) was also relied upon in the earlier judgment to submit that department was bound to give reasonable time to the assessee to place his point of view on record before passing of any assessm ent order. It was also argued that the impugned assessment order was passed in violation of fundamental right guaranteed under Article 10A of the Constitution. After recording these submissions, learned Judge in Chamber also noted the fact of seeking adjournments during proceedings before Taxation Officer in paragraph No,
4. Thereafter, the petition was dismissed with following observations:--- "5. In view of the fact that a final assessment order dated 24.12.2014 has already been passed, this Constitutional petition, which challenges an earlier show-cause notice dated 08.12.2014 has become infructuous. However, the petitioner has not been left without a remedy. Appellate remedies against the final assessment order are available under the law. The petitioner may (if so advised) challenge the final assessment order in accordance with law before the competent forum taking all legal, procedural and factual grounds that may be available to it under the law."
6. In view of the foregoing, this petition cannot proceed. It is accordingly dismissed."
7. There is no doubt that the petition was dismissed after considering the submissions, which are made in the instant petition and petitioner was advised to avail appellate remedies in accordance with law. The argument by learned counsel, that order in earlier petition does not prevent the second petition, is without force. A collective reading of the order dated 29.12.2014 in earlier petition shows that the argument for enforcement of fundamental right was not entertained, hence it cannot be re-agitated before the same Court by filing second writ petition. The apex Court in Ghulam Akbar Lang v. Dewan Ashiq Hussain Bukhari and others (2012 SCMR 366) has held; if finding of High Court in earlier Constitutional Petition is not set aside, subsequent petition on the same issue would be barred on the principle of constructive res judicata. Strength for this view, is drawn also from Messrs M.K.B. Industries (Pvt.) Ltd. And others v. Chairman, Area Electricity Board, WAPDA, (Peshawar Electric Supply Corporation Ltd.) (PESCO), Peshawar and others (2005 SCMR 699) and Muhammad Saleem Ullah and others v. Additional District Judge, Gujranwala and others (PLD 2005 S.C. 511).
' The judgment referred by Mr. Muhammad Ilyas Khan, Advocate in M/s. Chappal Builders' Case (supra) also supports the order dated 29.12.2014 passed in earlier writ petition. Since the case is decided on different premise, therefore, judgments relied upon by learned counsel for the petitioner do not require any deliberation.
' The second petition on the same grounds is misconceived, therefore, is dismissed.