SYED ARSHAD ALI, J.---This Reference Petition has been filed under section 133 of the Income Tax Ordinance, 2001 (hereinafter referred to as "Ordinance "), whereby , the following question of law has been raised for determination by this Court:- "Whether under the facts and circumstan ces of the case, the learned ATIR was justified to exempt the taxpayer from levy of turnover tax on the basis of clause (xx) of Finance Act, 2015 whereas mandatory clause (126F) of Part-I of the Second Schedule to the Income Tax Ordinance, 2001 excludes the taxpayer from exemption which says that "this concession shall not be available to the manufacturers and suppliers of cement, sugar , beverages and cigarettes" and the taxpayer deals in the business of beverages?"
2. In order to rehabilitate economic life in the province of Khyber Pakhtunkhwa ("KPK") and adjoining tribal areas, which was adversely affected during the then ongoing strife and war on terror , clause 126F was inserted in Part-I of Second Schedule to the Ordinance through Finance Act, 2010, whereby tax relief was granted to the business community of the province of KPK and adjoining tribal areas in form of exemption from payment of Income Tax for the tax years 2010 to 2012. The said clause is reproduced as under:-- "(126F) Profits and gains derived by a taxpayer located in the most affected and moderately affected areas of Khyber Pakhtunkhwa, F ATA and P ATA for a period of three years starting from the tax year 2010 Provided that this concession shall not be available to the manufacturers and suppliers of cement, sugar , beverages and cigarettes.
Keeping in view the aforesaid incentive, the respondents-company filed its return for the tax years 2010, 2011 and 2012 under section 120 of the Ordinance wherein it claimed exemption under section 126(f) of Part-I of the Second Schedule.
3. Under section 113 of the Ordinance any assessee who enjoys exemption from payment of tax under any provision of the Ordinance is still required to pay minimum tax on the total turnover for a particular tax year. Despite the aforementioned exemption the business community of the aforesaid areas was still required to pay minimum tax at the rate of 1 % on their total turnover . A good number of taxpayers, whose income was exempt under clause 126-F , had challenged the vires of section 113 of the Ordinance before this court which were allowed vide order dated 18.7.2012.
4. The said judgment of this court was challenged before the Apex Court through Civil Petition No,471-P/2012. The august Supreme Court was pleased to suspend the judgment of this court through order dated 11.1.2013. During that period, the Appellate Tribunal Inland Revenue, Peshawar in a case of Commissioner Inland Revenue, Peshawar v. Tamang Floor Mills (Pvt.) Ltd. held that despite immunity to the taxpayers under section (126F) of the Ordinance they are still liable to pay the minimum tax. In view of the aforesaid judgment of the Appellate Tribunal, respondent-company was served with a notice for payment of minimum tax under section 113(1)(c) of the Ordinance. When the Revenue Officer received no response from the respondent-company he passed an order on 23.1.2014 under section 122(5)(a) of the Ordinance whereby the minimum tax was charged on the total turnover of the respondent-company through separat e order for each tax year i,e, from 2010 to 2012 under section 113 of the Ordinance. The said orders were challenged before the Commissioner Inland Revenue by the respondent- company through Appeals Nos, 488, 489 and 490. The Worthy Commissioner (Revenue) remanded the cases to Additional Commissioner , on the analogy that this court had also remanded similar issues to the department. The present petitioner challenged the aforesaid order of remand of the Commission er Inland Revenue, before the Appellate Tribunal Inland Revenue, Peshawar Bench through Appeals Nos,193, 194 and 195 of 2014, however , during the pendency of the appeals, the law was amended through Finance Act, 2015 which read as:- (I1A) the provisions of section 1 13, regarding minimum tax, shall not apply to:-
(xx) taxpayers located in the most affected and moderately affected areas of Khyber Pakhtunkhwa, FATA and PATA for tax years 2010, 2011 and 2012 excluding manufacturers and suppliers of cement, sugar , beverages and cigarettes.
5. Since payment of minimum tax was no more the liability of the taxpayer/business concerns, who were enjoying exemption from Income Tax under clause 126F of the Ordinance, therefore, the Appellate Tribunal keeping in view the amendment in law through Finance Act, 2015 disposed off the appeal by holding that the minimum tax was not payable for the tax years 2010 to 2012,
6. The learned counsel appearing on behalf of Revenue has argued that since the respondent-company is engaged in the business of manufacturing and sale of beverages, therefore, the concession of clause (126F) of the Ordinance was not applicable to it and as such respondent-company has illegally availed the exemption from payment of Income Tax in terms of clause (126F) of the Second Schedule to the Ordinance.
7. On the other hand, the learned counsel representing the respondent-company has argued that the question of law raised before this Court has never been the case of revenue since inception of the proceedings, therefore, this issue cannot be decided under the instant reference.
8. Indeed the issue which cropped up before us is:-- "Whether any issue which was neither raised in the show-cause notice issue d by the Commissioner Inland Revenue nor the assessee was confronte d with the said allegation nor has been adjudged by the lower fora, can the same be referred to this court as question of law under section 133 of the Ordinance?"
9. Upon the bare reading of clause 126F of the Ordinance it is evident that any business concern involved in the manufacturing and supply of beverages is not entitled to the said concession. However , the question whether the respondent-company was earning profits from sale of beverages and as such was not entitled to exemption under clause 126F ibid was neither raised in the show-cause notice issued to the respondent-company under section 122 of the Ordinance nor the same was answered by any of the lower fora. In order to appreciate the aforesaid question, we would like to refer to the basic scheme of filing returns by an assessee and the powers of Revenue Division to amend the assessment. Under section 120 of the Ordinance if an assessee furnishes complete returns under section 114 of the Ordinance and the Revenue Division does not issue any notice pointing out any discrepancy in the said return within the period of 180 days from the end of financial year in which return was filed, in that case finality is attached to the said return under the doctrine of deemed assessment as envisaged by section 120 of the Ordinance. However , under section 122 of the Ordinance, the Commissioner Inland Revenue has the authority to amend the said deemed assessment on the following grounds:-- i. An audit is conducted of the Income Tax af fairs of the person under section 177 of the Ordinance; ii. On the basis of definite information acquired from the audit or otherwise, the commissioner is satisfied that:- a. any income chargeable to tax has escaped assessment b. total income has been under assessed or assessed at too low a rate or has been the subject of excessive relief or refund; c. any amount under ahead of income has been misclassified iii. After such inquiry as commissioner deems necessary , if he considers, that the assessment order is erroneous in so far it is prejudicial to interest of revenue.
10. Under the aforesaid section 122(9) of the Ordinance, no assessment shall be amended or further amended under that section unless the taxpayer has been provided with an opportunity of being heard. The concept of self- assessment and reopening of the said self-assessment has been elaborately dealt with by the august Supreme Court of Pakistan in " Income T ax Officer and another v . Messrs Chappal Builders " 1993 SCMR 1 108 as:-- "The matter has arisen out of the well-known self-assessment scheme introduced in the Income Tax Law of Pakistan so as to encourage the taxpayers to make contribution towards the State effort in running the Government and the other related State machinery more willingly than it used to be under the normal assessment scheme. One purpose was to save an honest taxpayer from unnecessary suspicion, accusatio n and torture of being accused and/or found guilty of deceit and falsehood. This being the main purpose, care was taken to safeguard the interest of the State also against deceit and cheating even in the self-assessment scheme. For the latter purpose the scheme as well as the provisions in the Income Tax Ordinance provided for a very limited re-opening of the self- assessment."
11. Thus, it is settled law that the show-cause notice issued to an assessee, before amendment of the assessment, must contain reasons for proposed action and the authority issuing a show-cause notice is required to solicit explanation of the assessee on the issues raised in the show-cause notice. It is then on the basis of the allegations in the show-cause notice and the reply , if any, filed by the assessee, the Commiss ioner or other authorized officer passes the order either amending the assessment order or otherwise. Similarly , once the Commissioner Inland Revenue has issued a show-cause notice on a particular ground and the case of assessee is decided on the basis of the said ground and if the said ground fails before the Appellate forum, then no new ground can be agitated/raised to be a valid reason for amendment in the assessment order , despite the fact that the same could be a ground for a show-cause notice. However , the Commissioner Inland Revenue, or any other authorized officer acting under section 122 of the Ordinance, is free to issue a fresh show-cause notice on the said allegations, but within the period of limitation as provided in section 122 of the Ordinance. In support of the above, this Court is fortified with the law laid down by the august Supreme Court in "Collector Central Excise and Land Customs and another v . Rahm Din " (1987 SCMR 1840 }, wherein, it has been held that:- "However , we are of the opinion that it is not necessary to determine this question of law in the facts of the present case as this petition can be disposed of on the short ground that the order of adjudication being ultimately based on a ground which was not mentioned in the show-cause notice, the order was palpably' illegal and void on the face of it. We have carefully examined the show-cause notice and find no reference whatsoever or necessary facts relating to the ground that the alleged contraband goods were imported into Pakistan from an unauthorized route. In view of this palpable legal infirmity , we do not consider it necessary to examine the other contentions raised by the learned counsel".
12. The aforesaid view has been reaffirmed by the august Supreme Court of Pakistan in case of "New Jubilee Insurance Company Ltd., Karachi v. National Bank of Pakistan, Karachi " {PLD 1999 SC 1126}, wherein, it was laid down that:-- "The right of access to justice includes the right to be treated according to law, the right to have a fair and proper trial and the right to have an impartial Court or Tribunal. The term 'due process of law' can be summarized as follows:-
(1) A person shall have notice of proceedings which affect his rights.
(2) He shall be given reasonable opportunity to defend.
(3) That the Tribunal or Court before which his rights are adjudicated is so constituted as to give reasonable assurance Of its honesty and impartiality , and
(4) That it is a Court of competent jurisdiction. Above are the basic requirements of the doctrine 'due process of law' which is enshrined, inter alia, in Article 4 of the Constitution. It is intrinsically linked with the right to have access to justice which is a fundamental right. This right, inter alia, includes the right to have a fair and proper trial and a right to have an impartial Court on Tribunal. A person cannot 'be said to have been given a fair and proper trial, unless he is provided a reasonable opportunity to defend the allegation made against him."
13. We are also conscious of the recent judgment of the August Supreme Court of Pakistan wherein the scope section 133 of the Ordinance has been extended to all legal question arising out of the order of the Appellate Tribunal despite the fact that the said question of law has not been referred to this court for advice. The said rule has been laid down in "Messrs Squibb Pakistan (Pvt.) Ltd. and another v. Commissioner Income Tax and another " {2017 PTD 1303 }. The august Supreme Court of Pakistan, after thoroughly examining the case law on the subject both from Indian and Pakistani jurisdiction, has finally held as under:- "An independent interpretation of section 133 of the Ordinance, 2001, as it stands today , on the plain language of the law, liberated from the burden or benefit of earlier judgments, would make the position very clear . Subsection
(1) confers a right on any person or the Commissioner aggrieved by a final order of the Appellate Tribunal to file an application before the High Court along with a statement of the case stating any questions of law arising out of the Tribunal's order . There is a direct right to approach the High Court in a similar manner as in appeals, revisions, reviews etc. The order being challenged is the final order but the challenge is limited to questions of law only. The statement must set out the .facts, the Tribunal's determination and the questions of law which arise out of its order in terms of subsection (3). The questions of law which may be referred are only those which "arise" out of the order of the Tribunal. On the plain language of the law, this would include any question which can be made out from the order of the Tribunal. There is nothing in the scheme of the section to impute any extraordinary limitations on the type of questions which may be posed. The facts as stated in the Tribunal's order have to be taken as recorded and any question which can be made out from those facts may be raised in an application under section 133 ibid, regardless of whether it was previously urged or not. There is absolutely no reason for confining the questions which may be referred to only those which were argued before the Tribunal on the hypothesis that this is an advisory jurisdiction as that is not what the language of the law contemplates. The law, as it stands, allows all questions "arising" out of the order to be referred and not just questions "argued" or "raised" before the T ribunal".
14. In view of the aforesaid judgment it can be safely construed if a question of law has not been raised in the Reference even then the High Court has the jurisdiction to decide any question of law arising from the order of the Tribunal, despite the fact that the same has neither been argued nor raised before the Tribunal, provided the said question of law must be arising out of the order of the Tribunal. Meaning thereby that the said issue must have been directly and substantially an issue before any of the lower fora. However , in the present case, the fact that respondent-company was not entitled to concession/exemption from income tax, owing to its engagement in the manufacturing and supplying of beverages, has never been the case of the petitioner in the show-cause notice.
The only issue before the lower fora was the liability of the respondent-company to pay minimum tax under section 113 of the Ordinance and, when through Finance Act, 2015, the said liability has been done away with retrospective effect then we are afraid that the petitioner is left with no cause or locus standi to further agitate the matter by switching over to a different issue, which was not a cause of action in the first show-cause notice. Even otherwise it is not factually established that the respondent company , during the relevant period, had earned income from sale of beverages. Therefore, it would be neither appropriate nor legal to answer the question of law raised in the present reference, in view of the law laid down by the August Supreme Court of Pakistan in Rahim Din and New Jubilee Insurance Company cases supra. However , the Petitioner may issue a fresh show-cause notice to the Respondent on the aforesaid new ground, provided the same is with in the period of limitation.
15. Consequently , for the reasons discussed above, this Tax Reference is accordingly , dismissed.