' AJMAL MIAN, J.--This petition is directed against a notice dated 18-11- 1987 issued under Section 65 of the Income Tax Ordinance, 1979, hereinafter referred to as the Ordinance.
2. The brief facts leading to the filing of the above petition are that the petitioner is Director of M/s M.F.M.Y. Industries (Private) Limited and is borne on N.T. No, 14-02-3175593. The petitioner filed his income tax return under the . Self Assessment Scheme for the year 1986-87 disclosing his personal total income as Rs,4, 13,486. In response to the above return the Income Tax Officer, Respondent No,1 served a notice dated 11-12-1986 upon the petitioner asking him for the documents/informations referred to in the above notice, which was replied to by the petitioner by his letter dated 30-12-1986. Thereafter the Assessment Order was finalised by Respondent No,1 by his order dated 15-11987. The operative portion of the order is as follows: ' After the perusal of assessee's explanation, following adjustments and changes in accordance with the law are made:-
(i) The assessee had claimed Zakat of Rs,58, 846 in column No, 9 of I.T.
11. This being donation to Jamiat Punjabi Sodagran, Delhi, shall be admitted as donation and credit thereon under section 47 (i) (d) shall be allowed.
(ii) Additional tax u/s. 87 for non-payment of tax u/s 53 shall be separately charged as per separate order.
(iii) The assessee has received advance rent of Rs,7,38,500 from M/s Mitsubishi Corporation, Karachi, for property 18-A, D.H.S., Karachi and from another party for property No, F/8, KDA-1, Karachi. 10% of this advance deposit is added to the income of the assessee u/s 12 (13) of I.T.
Ordinance, 1979.
3. The income of the assessee is computed as under:- {{TABLE}} Property income: Rs,4,22,482 Add: 10% of advance rent as discussed above: Rs,73,850 Rs, 4, 96, 332 Less: Wealth tax paid: Rs,58, 846 Rs,4, 37,486 Less: Basic exemption: Rs,24,000 Taxable income: Rs,4,L3,486 ' Assessed as per I.T. 30, Issue demand notice and challan accordingly."
' It seems that the petitioner was served with a Show Cause Notice dated 8-10-1987 by Respondent No,1 which reads as follows: ' To ' Mr. Zafar Usman, C/o M/s M.F.M.Y Industries Limited, Karachi ' Sub: Assessm ent year 1986-87 proceedings u/s 65-Regarding..
' It appears from the record that you have declared a new property vide No,18-A-II, Defence Society purchased for Rs,9,50,000 during the assessment year 1986-87. The value of property is grossly suppressed according to valuation table of Collector, Karachi.
' The annual letting value of the property is Rs,1,86,000 and ten times of the same comes to Rs,18,60,000 which further proves the under valuation of the property. I intend to re-open the assessm ent for the assessm ent year 1986-87 under section 65 for adding difference in the value of property.
' If you have any objection, your reply should reach the undersigned by 1310-1987. Positively. Sd/ (ABDUS SABUR) Income-tax Officer Companies Circle C-2, Karachi.
' The above notice was replied to by the petitioner's Chartered Accountant by letter dated 3-11-1987: Which reads as follows: "The Income-tax Officer, Company Circle C-2, Karachi.
' Sub:- Assessm ent year 1986-87 Proceedings U./S 65 ' Ref: Our' Client Mr. Zafar Usman C/o M.F.M.Y. Industries Limited, Karachi ' Dear Sir, ' With reference to the above we are instructed by our above named client that your attention is drawn to the Notice No,Co. Cir. C-2/86-87 dated 11-12-1986 wherein you required "purchase documents of property No,18-A-II Defence Housing Society with evidence of sources of investment" to be produced alongwith other information/details.
' The Sale Deed and all other particulars' were produced befor you alongwith explanation letter, dated 30th December, 1986. The capital gain was also paid by vendor Mrs. Samina Mumtaz on Rs,950,000. The receipt of the same was also produced. It was only after going through this that the assessm ent order dated 15th January, 1987 was passed by you.
' Now it is submitted that on mere change of opinion the assessment cannot be reopened. It may be pointed out that the reasons given in the show-cause notice do not confer on you the jurisdiction to re-open the case. The assessment order was passed after application of mind when all the relevant and necessary material particulars were with you and there was no suppression of facts by the assessee.
' In view of the above submissions it is prayed that the show-cause notice may kindly be withdrawn.
' Thanking you,"
' After the receipt of the above reply the impugned notice was issued. The petitioner being aggrieved by the above notice has filed the present petition.
3. In support of the above petition Mr. Relian Hassan Naqvi, learned counsel for the petitioner has vehemently urged that all the requisite document and informations were placed before the Respondent No,1 before the passing the Assessment Order and, therefore, he is not entitled to re- open the assessm ent under section 65 of the Ordinance merelyon the ground'that he has now changed the view. He has further urged that factually the Assessment Order was a regular order after scrutiny of the requisite documents and informations in terms of Section 62 of the Ordinance and not an order under the Self Assessment Scheme under section 59 (1) of the Ordinance.
' On the other hand, Mr. Waheed Farooqui learned counsel for the respondent has submitted that Respondent No,1 has discovered fresh concrete material against the petitioner in order to justify the issuance of the impugned notice and, therefore, it cannot be urged that the impugned notice is without jurisdiction or it is based on change of view.
4. In furtherance "of the above first submission that all the requisite documents and information's were placed before the Respondent No,1 before the passing of the Assessment Order and, therefore, he is not entitled to re-open the assessment under section 65 of the Ordinance merely on the ground that he has changed the.View, Mr.Rehan Hassan Naqvi has referred .To the aforesaid notice dated 11-12-1986 served by Respondent No,1 upon the petitioner asking for documents and informations before finalising the assessment and the Assessment Order and it has been urged by him that all the requisite documents and the informations were placed before the Respondent No,1 before he passed the Assessm ent Order. In support of the above submission he has referred to the case of Gemini Leather Stores v. Income Tax Officer, B-Ward, Agra, and others reported in Income Tax Reports, Vol 100, 1975 at page 1, in which it was held, while reversing the judgment of the Allahabad High Court, that after the discovery of the primary facts relating to the transactions evidenced by the drafts, it was for the Income Tax Officer to make the necessary enquiries .And draw proper inference as to whether the amounts represented by the drafts could be treated as part of the total income of the appellant which he did not do and therefore it was plainly a case of oversight and it could not be said that income chargeable to tax had escaped assessment by reason of the omission or failure on the part of the appellant to disclose fully and truly all material facts and hence the Income-tax Officer was not justified to take recourse to Section 147 (a) of the Income Tax Act.
' He has also referred to an unreported order dated 16-5-1988, passed by the Hon'ble supreme Court in the case of M/s Arafat Woollen Mills Limited v. The Incomettax Officer, Companies Circle C- 1, Karachi (Civil Appeal No,-K of 1986), setting aside the impugned notice issued by an Income Tax Officer under section 65 of the Ordinance, by setting aside the judgment of a Division Bench of this Court in the case of Araat Woollen Mills Ltd. v. The Income Tax Officer, Companies Circles E-1, Karachi (1986 PTD 316), whereby the Constitutional Petition of an assessee impugning the aforesaid notice was dismissed.
' The above order of the Hon'ble Supreme Court does not contain the reasons, which were to be recorded later on.
5. On the other hand Mr. Waheed Farooqui has invited our attention to para 6 of the counter affidavit, in which inter alia, it has been averred by respondent No,1 that he had discovered that the Excise and Taxation Officer had assessed the value of the property in question at Rs,10,25,000 and besides the expenditure of Rs,57,000 towards stamp duty and Rs,9,506 towards registration charges had not been shown by the assessee in the income tax return for the year in question.
' Mr. Farooqui has referred to the case of Messrs Wali Traders v. Income Tax Officer, Circle XVIII, East Zone, Karachi and another, reported in 1988 PTD 206, in which a Division Bench of this Court while dismissing a Constitutional Petition, in which notice under section 65 of the Ordinance was impugned held that the High Court will not lightly deprive the hierarchy of Tribunals, their jurisdiction under the relevant special Statute, unless it was shown that the impugned action was patently without jurisdiction or was coram non judice or mala fide and that it would be a futile exercise if the case was allowed to be proceeded with before the Tribunal concerned and would expose a party to unnecessary harassment.
6. We would not like to pre-empt the proceedings before the Income Taxi Department. However, it will suffice to observe that we are unable to discover from the material placed before us that the above two items of expenditure were factually disclosed by the petitioner in his income-tax return.
The rejoinder to- the counter, affidavit filed by the petitioner on the above point is vague as there is no express denial of non-showing of the above expenditures.
7. We are, therefore, of the view that we cannot at this stage hold that the impugned notice is without jurisdiction as to warrant the interference by this Court in exercise of constitutional jurisdiction and deprive jurisdiction of the hereby of the forums provided under the Ordinance.
' The petition has no merits and, therefore, it is dismissed but there will be no order .As to costs.
' These are the reasons in pursuance of a short order of even date.