AJMAL MIAN, J.
1. The petitioners have impugned orders passed under Section 46(1) of the Income Tax Act by respondent No. 2 imposing penalty at the rate of 10% under the above section for non- payment of the tax amount payable under M.L.R. 32.
2. In support of the above petition, it has been contended by Mr. Muhammad Naeem, learned counsel for the petitioners that Section 46(1) of the Income Tax Act can be pressed into service only in respect bf income tax payable under the Income Tax Act and not payable under M.L.R. 32 in the absence of a statutory provision making the above Section applicable. The reliance has been placed on the case of Commissioner of Income Tax Lahore v. Aziz Din (1976)33 Taxation 258) and the case of Commissioner of income Tax, Rawalpindi Zone, Rawalpindi v. Mst. Mahmood Sultana (PLD 1978 Lah. 242). In the first case a Division Bench of the Lahore High Court while deciding the question in an Income Tax reference as to whether sub-section (1) of Section 46 could be made applicable in respect of income tax payable under the provisions of the previous M.L. Rs. 43/48 held that sub-section (1) of Section 46 was not applicable. In the second case a Division Bench of the Lahore High Court again deciding an Income Tax Reference took the view that sub-section (1) of Section 46 cannot be pressed into service if the income tax amount is payable under M.L.R. 32 in question. A Division Bench of this Court in Constitutional Petition No. 580/74, decided on 13-10-1982 took the same view, namely Messrs Souvenir Tobacco Co. Ltd. v Income Tax Officer, Companies Circle XIII, Karachi (1983 PTD 41, PTCL 1983 CL 79).
3. Mr. Nasrullah Awan learned counsel for the respondents was unable to cite any case, in which a contrary view might have been taken by any superior Court. However, we may observe that the appropriate remedy for the petitioners was to file a departmental appeal etc. In the above two Lahore cases the High Court had decided the two Income tax references and not writ petitions. But in the Karachi case the subject-matter was a Constitutional petition which was allowed. Since this petition was filed in 1976 and no such objection was raised by the respondents in a counter- affidavit or otherwise. As a matter of fact no counter-affidavit has been filed and as the above orders seem to be without jurisdiction, we do not wish to non-suit the petitioner on this ground at this stage. We, therefore, allow the above petition and declare the impugned orders as without lawful authority and of no legal effect. Respondents are restrained from enforcing the same.