1. WAJIHUDDIN AHMED, J.--Petitioners in .These two Constitutional petitions are husband and wife. As individuals, the petitioners submitted their respective returns of Income under section 59 of the Income-tax Ordinance in the assessment year 1987-88. Such returns were selected for detailed scrutiny through computer ballot in terms of paragraph 5 of Circular No. 9, issued by the Central Board of Revenue, pertaining to the Self-Assessment Scheme for the assessment year 1987-88.
2. Each of the petitioners was informed of the above fact and statutory notices, under section 61 of the Income-tax Ordinance, 1979, were served for appearance on 21-1-1988. Either assessee objected to the selection of the case for detailed scrutiny and claimed that the relevant matter be processed on self-assessm ent basis alone. The Income Tax Officer addressed, declined to accede to the requests and proceeded to finalize the assessments by making additions under various clauses of section 13 of the Income-tax Ordinance etc. Appeals preferred by the petitioners before the Commissioner of Income Tax were dismissed. Aggrieved and dissatisfied, the petitioners moved the Income Tax Appellate Tribunal, which Tribunal allowed each of the appeals, remanding the matters to the Income Tax Officer for fresh assessments after providing due opportunity for the petitioners to take part hi the assessment proceedings. Petitioners assail such orders of remand before us.
3. Questions of fact and law raised in these petitions are similar and, therefore, such are disposed of through a common consolidated order.
4. The contentions raised before us may now he summarized. Mr. Shakil Zaheer Lari, who has appeared for the petitioners, has raised the following points for consideration:--
(1) The proceedings initiated under the Self-Assessment Scheme for detailed scrutiny of the returns submitted by the petitioners arc mala fides, in violation of the principles of natural justice and statutory requirements and, thus, contrary to law and of no legal effect.
(2) The appeals of the petitioners before the Commissioner of Income Tax (Appeals), Zone 1, who had jurisdiction in the matter, were arbitrarily transferred to the Commissioner of Income Tax (Appeals), Zone III, who was responsible for the selection through computer ballot and having taken offence to the petitioners' agitating against the computer ballot was motivated by malice.
(3) The Income Tax Appellate Tribunal erred in law in remanding the cases to the Income Tax Officer, and deviating from its earlier pronouncements on the subject in not deleting the offending additions.
5. It does not seem desirable to delve deep into the factual controversies, for the primary question before us is one of jurisdiction as regards the competence and maintainability of these petitions.
6. Such question is simple enough and consists in the apparent availability of an alternative remedy to the petitioners under section 136 of Income-tax Ordinance, 1979, by seeking or, on failure of grant, themselves making a reference to this Court against the grievance, if any, in relation to the orders of the Income Tax Appellate Tribunal. To this Dr. S.A. Wadood, Deputy Attorney-General for Pakistan, subscribes but understandably, Mr. Shakeel Zaheer Lari does not.
7. Now, it is to be conceded that in cases of absence or excess of jurisdiction or abuse thereof or where an order, falling within the ambit of Article 199 of the Constitution, suffers from illegality on the face of the record, interference in this Court can be made. Like would be the result in matters where a statutory functionary acts in a mala fide, unjust, partial or oppressive manner.
8. However, it remains to be seen whether the proceedings initiated by the Income Tax officer calling upon the petitioners to submit to detailed scrutiny, following upon the outcome of a computer ballot, suffered from jurisdictional errors or were illegal or in bad faith and whether the alternative remedy, by way of reference to this Court under section 136 of the Income-tax Ordinance. 1979, is not adequate.
9. The next question, without unduly dilating upon details, concerns the petitioners' initial appeals, lodged before the Commissioner of Income Tax (Appeals), Zone I, their avowed arbitrary transfer to the Commissioner of Income Tax (Appeals), Zone III, and that officer's, allegedly, coming to be ",rested with mala fides because of the petitioners'. Making grievance against selection by computer ballot, since such officer himself was, supposedly, responsible for that selection. Nothing more need be said on the subject than that the orders of the Commissioner of Income Tax (Appeals), Zone III have been set aside by the Tribunal and the matters stand remanded to the income Tax Officer concerned, thereby, for the present, foreclosing all objections as pertinent to the exercise of jurisdiction by that officer subject, however, to examination, if due, on a reference under section 136 of the Ordinance.
10. Lastly, coming to the orders of the Income Tax Appellate Tribunal, the contention, based on a decision of that Tribunal itself, as reported in 1989 PTD (Tribunal) 150, is that if the additions made by the Income Tax Officer were found by the Income Tax Appellate Tribunal to be in contravention of the provisions of section 13 of the Income-tax Ordinance, 1979, the Tribunal should have deleted such additions altogether and could not have opted to remand the cases to the Income Tax Officer on the, purported, ground that it was the attitude and the conduct of the petitioners, which had precluded the Income Tax Officer from following due procedure in accordance with section 13 ibid. We do not wish to say anything, at this stage, about the correctness or otherwise of the Tribunal's opinion, as reflected in 1959 PTD (Tribunal) 150 or even the competence of the order of remand here involved and would limit ourselves by observing that such questions, being questions of law, can patently be agitated in the other jurisdiction of this Court under section 136 of the Income-tax Ordinance by making due reference. Learned counsel has, however, drawn our attention to a Division Bench decision of the High Court at Lahore, as reported in the case of Shaikh Akhtar A.I v.
11. Federation of Pakistan and 4 others 1980 PTD 406. This case is distinguishable for more than one reason. Firstly, manifest mala fides were involved in the initial exercise of jurisdiction by the Income Tax Officer in that case, there being violent disputes and even criminal proceedings between the assessee and such officer. Secondly, contention in that case was that scope of a reference was very much limited as "in a reference application under section 06(1) only questions which arise out of the order of the Appellate Tribunal may be raised ---." Lastly, the reference application filed by the petitioner in the cited case was withdrawn by him in view of the pendency of the constitution petition. Except on the question of mala fides and jurisdiction the learned Judges in the Lahore High Court rendered no findings and on that premises alone found the remedy by way of reference to the inadequate. In a case patently involving malice at the core, where even the Income Tax Appellate Tribunal chose to give no findings on the question. Assumption of jurisdiction by the High Court at Lahore could have been warranted. However, argument of counsel in that case that "only questions which arise out of the order of the Appellate Tribunal may he raised" in an application under section 06(1) of the Income Tax Act, 1922, as it then stood, was ill-founded. In such context that relevancy is of facts and circumstances of the "case". Which implies the "case" as a whole from its inception up to the level of the Tribunal, the only condition being that, a particular question was duly raised and urged. If the Tribunal fails to consider it that omission by itself would give rise to question of law, fittingly, a subject for reference.
12. Much as this Court, in its Constitutional jurisdiction, does not enquire into disputed facts, it is not for the Court, in exercise of jurisdiction under section 136 of the Income-tax Ordinance, to go behind the Tribunal's findings on facts, I the latter being the final Court of fact. However, relevant to section 136, where findings of facts are based on conjectures or surmises or on material which has no evidential value, or partly so, in such manner that it is not possible to conclude which part resulted in the relevant finding, such finding has no sanction in law and a question of law arises. This is so as the question whether there is any evidence to support a finding of fact is a question of law and can be raised on a reference. Even where, on proved or admitted facts, further deductions or conclusions of pure fact are drawn, it is always a question of law whether such proved or admitted facts provide due evidence for further conclusions of fact. Similarly, the purport or construction of a document can only be a question of law. The tribunal's misdirecting itself in arriving at a finding such as by overlooking or ignoring a crucial fact or document or affirming an assessment order in violation of the fundamental principles of justice would also vitiate its findings and give rise to question of law. Accordingly, while the jurisdiction. Emanating from section 136 of the Income-tax Ordinance is limited to consideration of questions of law alone the scope and ambit of such questions is wide enough to include a variety of matters, substantially, buttressing the efficacy and adequacy of that remedy.
13. It will also not be out of place here to point out that a number of cases, having bearing on the interpretation of section 66 of the Income Tax Act, 1922, were either decided prior to the Pakistan amendments, as successively made through the Finance Ordinance, 1971, and the Finance Act of 1974 etc. Or in which the amended version did not come up for consideration. These amendments were a radical departure from the concept of a reference to a High Court, as the same stood in the Act of 1922 prior to those promulgations. Such amended version of section 66 of the Income Tax Act, 1922, has been; more or less, re-enacted in section 136 of the Income-tax Ordinance, 1979, which is applicable to the instant case. No more, therefore, the supposedly cumbersome procedure in the original statutory provision of section 66, of the Income Tax Act, 1922, can be claimed to impinge upon the adequacy of remedy by way of a reference under section 136 of the Income-tax Ordinance, 1979.
14. We are, therefore, of the view that the remedy under section 136 of the Income-tax Ordinance, 1979, as it now stands, no longer being riddled with any procedural bottlenecks, is a substantial independent remedy for the tax-payer as well as the revenue. Such being directed to the High Court itself, if a case has travelled as far as the Appellate Tribunal and a decision is rendered therein, it would be a rare case, wanting in or exceeding or abusing jurisdiction or beset with illegalities or inescapably tainted with mala fides, which could warrant interference in Constitutional jurisdiction rather that upon a reference. As implicit in section 136(7), may it be stated that when exercising powers, in the way of reference, a High Court would be fully competent to grant ancillary relief(s) or set into motion interim measures of redress, like any other Court exercising jurisdiction at the apex of a judicial hierarchy. In point also are the observations in a Full Bench decision of this Court in Abdul Bari v. Government of Sindh PLD 1981 Kar. 290 which, in our view equally apply to the exercise of powers under section 136 of the Income-tax Ordinance, 1979.
15. This is what, on the authority of Sindh Employees Social Security v. Adamjee Cotton Mills Ltd. PLD 1975 SC 32, was said in that case:-- "The learned Deputy Attorney-General made a categorical concession that the Services Tribunal is fully empowered to pass orders for an interim relief as such orders are ancillary to the power of final adjudication conferred on the Tribunal as held in the case Sindh Employees' Social Security v.
16. Adamjee Cotton Mills Ltd. PLD 1975 SC 32."
17. For the reasons recorded herein and on coming to the conclusion that an equally efficacious and adequate remedy was available to the petitioners, we had, through a short order, dismissed these petitions.