SAEEDUZZAMAN SIDDIQUI J.--1. We propose to dispose of the above noted nine petitions filed by M/s. Hamdard Dawakhana (Waqf) Karachi by a consolidated order as the points of law involved in these petitions are common.
2. The petitioner has challenged in the above petitions the orders assessing income tax on the income arising to the petitioner on the sale of 'Sharbat Rooh Afza' manufactured by them during the assessm ent years 1980-81 to 1988-89. The respondents have assessed the tax on the income derived by the petitioner from sale of 'Rooh Afza Sharbat ' on the ground that such income received by the petitioner is not exempted from the charge of tax under clause (93) of the Second Schedule to the Income Tax Ordinance, 1979 (hereinafter called as 'the Ordinance') as the business relating to manufacture and sale of 'Sharbat Rooh Afza' is not subject to trust. In order to appreciate the controversy in the above petitions, it is necessary to state here the following backgrounds:--
3. Hakim Muhammad Saeed as Sole Proprietor established the business under the name and style of 'Hamdard Dawakhana' which was engaged in the manufacture of Unani medicines including a sharbat known as Sharbat Rooh Afza'. By a deed of trust dated 26th September, 1953, the said Hakim Mohammad Saeed created a trust known as "Hamdard Dawakhana Trust" and transferred his entire running business under the name of Hamdard Dawakhana Karachi with its assets and liabilities shown in the balance sheet as on 31st March, 1953. To the said trust effective from First April. 1953. Under the trust deed 3/4 of the net profit arising from the business was to be spent/utilised on the development of Arts & Science pertaining to Tibb and other Philanthropic and charitable works, while remaining 1/4 income was reserved by the donor himself during his life time and after his death to his legal heirs On the basis of the above provisions in the trust deed the petitioner, lor the assessm ent year 1954-55, claimed exemption of 3/4 income of the trust from the charge of income tax. Under section 4(3)(i) of the Income Tax Act, 1922 (hereinafter to be called as 'the Act' only). It was urged that 3/4 income derived from the business which was held in trust for religious and charitable purposes was not subject to charge of income tax. The Income Tax Officer, however, did not agree with the contention of the petitioner and rejected their claim for exemption under section 4(3)(i) of the Act. The petitioner submitted a direct appeal to the Income Tax Appellate Tribunal against the assessment order for the assessment year 1954-55, which was allowed on 6th January, 1961 and 3/4 income derived by the petitioner from its commercial undertaking, namely Hamdard Dawakhana Trust, was held exempted from the charge of income tax under section 4(3)(i) of the Act. The order of the Income Tax Tribunal, dated 6th January, 1961 was not challenged by the Income Tax Department. However, in the subsequent assessment years namely 1955-56, 1956-57 and 1957-58, the Income Tax Officer once again subjected the whole of the income of the petitioner to the charge of income tax and disallowed the exemption claimed by the petitioner to the extent of 3/4 income of the trust on the same ground on which it was disallowed for the assessm ent year 1954-55. The' petitioner once again took the matter in appeal directly to the Income Tax Tribunal against the order of Income-tax Officer in respect of the aforesaid three assessm ent years but this time the Income Tax Appellate Tribunal by a consolidated order dated 2nd December, 1963, though allowed the appeal of the petitioner but held that in so far the income arising to the petitioner from sale of 'Rooh Afza Sharbat' was concerned, it could not be exempted from the charge of tax under section 4 (3) of the Act as "Rooh Afza Sharbat" was not manufactured in the course of carrying out the religious or charitable purposes of the Trust, since this product was not a medicine pure and simple but a syrup like any other beverage. Both the petitioner as well as the Income Tax Department, who were aggrieved by the above decision of Income Tax Appellate Tribunal, approached the Tribunal for making a reference to this Court under section 66 (1) of the Act. The department suggested two questions while the petitioner assessee suggested three. The Tribunal after hearing the applications of petitioner/assessee and the department referred the following two questions to this Court in Civil Reference No. 5/1966 by its order dated 14th June, 1965:--
(1) Whether in the facts and circumstances of the case the Tribunal was justified in holding that the income of-the assessee is exempt from lax in view of the provisions as contained in section 4 (3)
(i) of the Income Tax Act?
(2) Whether in the facts and circumstances of the case the Tribunal was justified in holding that income arising from manufacture and sale of "Sharbat-e-Rooh Afza" is hit by the first part of the first provision to Section 4 (3) (i) of the Income Tax Act, 1922, and is liable to tax?"
4. As the questions Nos. 2 and 3 suggested by the petitioner/assessee were not referred to this Court by the Tribunal, the petitioner/assessee filed three reference applications to this Court under section 66 (2), of the Act for a direction against the Tribunal to refer the following two questions as well to this Court:--
(1) Whether on the facts and circumstances of the case the Tribunal was justified in holding that the difference between the income disclosed by the Account Books and the income actually determined for purposes of Income-tax was not entitled to exemption on the ground that it was not expendable or actually applied for charitable purposes?
(2) Whether the Tribunal for the assessment year 1954-55 having held that 3/4th of the income of the Trust was exempt from tax under section 4(3)(i) and the department having accepted the decision, the Income Tax Authorities and the Tribunal in accordance with the principles of natural justice were not estopped from re-opening the question?"
5. The three reference application of petitioner were registered as ITC Nos. 33, 34 and 42/1966. All the above mentioned cases, namely, the Civil Reference No. 5 of 1966 and ITCs Nos. 33, 34 and 42 of 1966 were heard together and were disposed by a Division Bench of the then' High Court of Sind and Baluchistan, Karachi, by judgment dated 2nd November, 1970. The High Court answered the question No.1 referred by the Tribunal in ITC No. 5/1966 in the negative, and in view of the negative answer to the 1st question, the High Court held that the remaining question in the reference which was referred at the instance of petitioner/assessee did not arise. For the above reasons the questions sought to be referred in ITC Nos. 33, 34 and 42/1966 were held to be redundant by the High Court. The petitioner filed an appeal before the Supreme Court against the above decision of the High Court in the aforesaid cases which was allowed on 10th March, 1980 as follows:-- "For these reasons, I am of the view that the case of the Hamdard Dawakhana Trust falls squarely within the ambit of clause (i) of subsection (3) of section 4 of the Act, as the business constituting the trust is property held in part for religious or charitable purposes, and, therefore, the income applied or finally set apart for application to such purposes, namely, 75% of the total would be exempt from taxation under the second part of the said clause. The income being from business held under trust, the first proviso to clause (i) has no application to this case. I would, accordingly accept this appeal and answer in the affirmative the question referred to the High Court at the instance of the Income Tax Department under section 66 (i) of the Act.
In view of the legal questions involved, I would leave the parties to bear their own costs.
I may observe that in view of the construction that I have placed on the relevant provisions of law, the question referred to the High Court at the instance of the assessee, namely, "whether on the facts and circumstances of the case the Tribunal was justified in holding that income arising from manufacture and sale of 'Sharbat-e-Rooh Afza' is hit by the first part of the first proviso to section 4
(3) (i) of the Income Tax Act, 1922, and is liable to tax', will need to be answered by the High Court, and the case will, accordingly, go back to it for this purpose."
In view of the above quoted last observation of Supreme Court, the second question of Civil Reference No. 5/1966 came to be considered by a Division Bench of this Court, which by its order dated 24th March, 1981 answered the question as follows:-- "The Supreme Court held that the income being from business held under the Trust, the first proviso to clause (i) of sub-section (3) of section 4 of the Income Tax Act, 1922, has no application to the case."
Since the manufacture and sale of 'Sharbat-e-Rooh Afza' was part of the business donated to and held under the Trust, the same considerations which apply to income from business held under the Trust are applicable. The question is, therefore, replied in the negative and it is held that the income arising from the manufacture and sale of 'Sharbat-e-Rooh Afza' is not hit by the first part of first proviso to section 4 (3) (i) of the Income Tax Act, 1922, and the liability to tax is only after allowing exemption under the second part of clause (i) of subsection (3) of section 4 of the Act."
7. It is not disputed the learned counsel for the respondents before us that the above decision of the High Court in Civil Reference No. 5/1966 was not challenged by the department any further, and, therefore, it has attained finality. It may be mentioned here that while the above mentioned proceedings were going on before the Supreme Court and the High Court, the Income Tax Department assessed the entire income of the petitioner arising from the business to income tax for the assessm ent years 1976-77 to 1979-80 without allowing any exemption under section 4 (3) (i) of the Act. In ' the meantime Income Tax Ordinance, 1979 (hereinafter called as the Ordinance) was promulgated on 26th June, 1979, and accordingly the Income Tax Returns submitted by the petitioner for the assessm ent years 1980-81 to 1988-89 were dealt with by the I.T.O, under the Ordinance. In respect of the returns of income filed by the petitioner for the assessment years 1980- 81 to 1988-89, the Income Tax Officer on comparison of the language of section 4(3)(i) of the Act with Clause (93) of the Second Schedule to the Ordinance took the view that on account of change in law the decision of Supreme Court given in favour of petitioner under section 4(3)(i) of the Act was inapplicable and accordingly, he held, that the income arising to petitioner by sale of 'Rooh Afza Sharbat' was not entitled to exemption under Clause (93) of the Second Schedule to the Ordinance. The petitioner has challenged the above assessment orders in respect of assessment years 1980-81 to 1988-89 in the above petitions. It may be mentioned here that in the Departmental appeals filed by the petitioner against the assessment orders for the assessment years 1976-77 to 1983-84, the 1st Appellate Authority by a consolidated order dated 27th July, 1986, allowed the appeals of petitioner for the assessment years 1976-77 to 1979-80 and granted the exemption claimed by the petitioner under section 4(3)(i) of the Act, in accordance with the above decision of Supreme Court in the case of the petitioner, but disallowed the exemption claimed by the petitioner in respect of assessm ent years 1980-81 to 1983-84 on the income arising from the sale of Rooh-e-Afza Sharbat', on the ground that on account of change of law which came into effect due to promulgation of the Ordinance, the decision of Supreme Court was no more applicable to the cases of the petitioner for these years. The same position prevailed in respect of all subsequent assessm ent years upto 1988-89, The petitioner filed constitutional petition No. 69 of 1985 directly in this Court challenging the assessm ent order of I.T.O, for the assessment year 1981-82 and also submitted a departmental appeal to the Assistant Appellate Commissioner against that order. He also filed Departmental appeal against the assessment orders for the years 1980-81, 1982-83 and 1983-84. The departmental appeals of the petitioner relating to years 1976-77 to 1983-84 were decided by a consolidated order dated 27th July, 1986 which is referred to above. After decision of the above departmental appeals filed by the petitioner, the petitioner filed petitions Nos. 301 to 303 of 1987 challenging the order of I.T.O, and the 1st Appellate Authority relating to assessment years 1980-81, 1982-83 and 1983-84 respectively. The petitioner also sought amendment in its pending petition No. 69 of 1985 relating to the assessment year 1981-82 on account of the order dated 27th July, 1986 passed by the Assistant Appellate Commissioner, which was allowed. In respect of assessm ent years 1984-85, 1985-86, 1986- 87, 1987-88 and 1988-89, the petitioner filed petitions Nos. 327 of 1987,328 of 1987, 497 of 1987, 406 of 1988 and 1361 of 1988 respectively challenging the order of I.T.O, and also filed departmental appeals to the Assistant Appellate Commissioner against the orders of I.T.O. For assessment years 1984-85 to 1987-88, the Departmental appeals of the petitioner were rejected during the pendency of the above petitions whereupon the petitioner applied for suitable amendments in the petitions which were allowed. However, the departmental appeal of the petitioner for the assessment year 1988-89 is still pending. The petitioner has also filed 2nd appeal before the Income Tax Appellate Tribunal against the orders rejecting his first appeals for the assessm ent years 1980-81 to 1987-88 which are still pending. At this stage we feel it appropriate to mention below in a chart the dates of filing of the above petitions, the dates of orders of I.T.O., the dates of the orders of 1st Appellate Authority, and the Departmental proceedings if any, pending in each case separately, as these details are relevant for decision of the preliminary objection raised by the respondents to the maintainability of these petitions:-- Petition No. Date of filing the petition in High Court Asstt.
Year. Date of order of I.T.O. Date of the order of Assistant Appellate Commissioner Proceedings pending in the Department 1 2 3 4 5 6 302 of 1987 1-4-1987 1980-81 Nil 27-7-1988 Appeal before I.T. Appellate Tribunal.
1 2 . 3 4 5 6 69 of 1985 31-12-1984 1981-82 Nil 27-7-1986 Appeal before I.T. Appellate Tribunal.
301 of 1987 1-4-1987 1982-83 15-6-1985 27-7-1986 -do- 303 of 1987 1-4-1987 1983-84 16-9-1985 27-7-1986 -do- 328 of 1987 8-4-1987 1984-85 24-3-1987 8-12-1987 -do- 327 of 1987 8-4-1987 1985-86 24-3-1987 8-li-1987 -do- 497 of 1987 17-5-1987 1986-87 Nil 8-12-1987 -do- 406 of 1988 27-4-1988 1987-88 31-3-1988 29-5-1988 Nil 1361 of 1988 28-12-1988 1988-89 30-11-1988 Appeal Pending Nil {{TALE MISARRANGED}}
8. The contention of the learned counsel for the petitioner in the above cases is that the petitioner was entitled to exemption on the income derived by it on the sale of Rooh-e- Afza Sharbat' for the assessm ent years 1980-81 to 1988-89 under the Ordinance in the same manner as was allowed to it under the Act up to assessm ent year 1979-80, in view of the decision of the Supreme Court dated 10th March, 1980 in the case of petitioner and that of the High Court in Civil Reference No. 5 of 1966.
With regard to the contention of respondents, that on account of promulgation of the Ordinance, the law has changed which rendered the above decision of Supreme Court in the case of petitioner ineffective, the learned counsel after comparing section 4 (3) of the Act with Clause (93) of the Second Schedule to the Ordinance, contended that the slight change in the phraseology of Clause
(93) of the Second Schedule to the Ordinance did not affect the validity of the above judgments of Supreme Court and the High Court in the case of petitioner and the conclusions of respondents in this regard are totally mis-conceived and perverse.
9. The learned counsel for the respondents, besides justifying the interpretation and meaning put on Clause (93) of the Second Schedule of the Ordinance by the respondents, vehemently argued that the above petitions were not maintainable as the petitioner has rushed to this Court without exhausting all the remedies available to him under the Ordinance.
10. Before considering the arguments on merit in the above Cases, it will be appropriate to first decide the preliminary objection raised by the respondents regarding maintainability of the above petitions. The contention of the learned counsel for the respondents is that the petitioner in all the above cases while filing petitions under Article 199 of the Constitution against the orders of I.T.O, had also simultaneously filed the departmental appeals which were subsequently decided during the pendency of these petitions and, thereafter, the petitioner filed further departmental appeals before Income Tax Appellate Tribunal which are still pending. It is, accordingly, contended that the petitioner having opted for availing of the departmental remedy in the cases under the Ordinance, was not entitled to invoke the Constitutional jurisdiction of this Court without having first exhausted all the remedies provided under the Ordinance. In support of the preliminary objection the learned counsel for the respondents relied on the cases of CA. Abraham v. Income Tax Officer, Kottayam, and another 1961 (41) I.T.R. 425, Tripura Modem Bank Ltd. (Pakistan Zone) Chittagong v. Khan Bahadur Khalilur Rehman & 3 others PLD 1971 Supreme Court 236; Shagufta Begum v. I.T.O. Circle XI, Zone 'B' Lahore 1989 PTD 544 = PLD 1989 SC 360 = PTCL 1989 CL. 695, M/s. Julian Hoshang Dinshaw Trust v. Income Tax Officer, Circle XVIH, South Zone, Karachi and 2 others 1981 PTD 53, Nagina Dal Factory v. Income Tax Officer and another 1968 SCMR 1035, Steel Brothers and Company Ltd. London v. Central Board of Revenue, Islamabad and others 1968 SCMR 774 and Raja Habib Ahmad Khan v.
Income Tax Officer 1972 SCMR 556.
11. In reply to the above preliminary objection of the respondents, the learned counsel for the petitioner, contended that the question involved in the above petitions is one of interpretation of law only which can be more conveniently disposed of in the Constitutional jurisdiction of this Court without much' expense and time, as compared to departmental .Remedies which are much limited in scope and cannot be considered as adequate and speedy in the circumstances of the case. The petitioner in support of his above contention referred to the cases of Nagina Silk Mill, Lyallpur v. (1)
The Income Tax Officer, Ward Lyallpur and (2) The Income Tax Appellate Tribunal Pakistan PLD 1963 SC 322, Eruch Maneeckji and 2 others v. Income Tax Officer, Centred Circle III, Karachi 1979 PTD 461, Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447, Premier Cloth Mills Limited Lyallpur v. Sales Tax Officer, Investigation Circle II, Lahore and (mother 1974, 1972 SCMR 257 and Husein Sugar Mills Ltd., Karachi v. The Islamic Republic of Pakistan and another 1981 PTD 169. The circumstances, under which the remedy provided under Article 199 of the Constitution can be availed of by an aggrieved person in spite of existence of an alternate remedy under a statute, were examined in detail by a Division Bench of this Court in the case of Sher Shah Industries v. Government of Sindh and others PLD 1982 Karachi 653 and after an exhaustive review of the case law on the point it was held as follows:-
8. A review of the case-law referred to hereinabove shows that in certain cases the superior Courts of our Country did not allow the petitioners to invoke the writ jurisdiction on the ground of availability of an alternate remedy by way of appeal or otherwise, but on the other hand, in other cases, notwithstanding the pendency of an appeal or availability of an alternate remedy, the Courts did not hesitate to exercise such writ jurisdiction and in fact granted relief to the petitioners.
It may be expressed as a generally accepted principle, however, that just because an alternate remedy by way of appeal or otherwise is available to a petitioner the High Courts will invariably decline to exercise their extraordinary Constitutional jurisdiction. The mere availability of an alternate remedy does not debar the High Courts from exercising such jurisdiction. But as observed by Dorab Patel, J., in Hassan Ali v. Muhammad Ahsan Baloch (1), the question whether a writ should be entertained when an alternate remedy is available is always one within the discretion of the Court. In cases of total lack or absence of jurisdiction or authority, or apparent excess of jurisdiction, the Courts generally would not hesitate much in entertaining a Constitutional petition although an alternate remedy may well be available. In other cases, the Courts would generally direct the party to avail and exhaust the alternate remedies available first before entertaining the writ, if in the opinion of the Courts the alternate remedy is an adequate remedy.
9. Whether the alternate remedy available to the applicant - who is seeking the Constitutional remedy, is adequate or not depends on the special or particular circumstances of the individual else, and it is precisely for this reason that in one case the High Court may not entertain the petition under its Constitutional jurisdiction and in another case the same may be entertained. In taking a decision whether the alternate remedy in a given case is adequate or not to enable the High Court to take the further decision relating to entertaining the Constitutional petition, the Court in the background of the particular facts of the case before it, considers several factors. The; question of speed and expense of the alternate remedy may be considered. Whether the alternate remedy is as effective or efficacious as the Constitutional remedy is also a relevant factor. Whether in the circumstances of the case, the alternate remedy or the writ would be the appropriate remedy can also be a pertinent consideration.
10. In the instant cases an alternate remedy by way of appeal under rules 48 and 21C of the 1964 Octroi Rules is available to the petitioners. In some cases, the petitioners have, in fact, filed appeal which are pending before the concerned Officer of K.M.C., in other cases appeals have not been filed and the petitioners have straightaway approached this Court. Nevertheless we have decided tc entertain these Constitutional petitions and the following reasons have promoted us to take this decision:-
(a) The vires of the relevant Octroi Rules have been challenged in these petitions and it could not be reasonably expected that an Officer of K.M.C, the designated appellate authority, would decide that the Rules were ultra vires.
(b) On merits the point involved in these petitions is the interpretation of the words "consumption, use or sale within the octroi limits" used in the 1964 Octroi Rules.
(c) Nearly two years have passed and not a single decision by the appellate authority has apparently been given. Huge amounts are involved and practically the entire shipbreaking industry is affected. A speedy decision on the question involved Was not only necessary but desirable to clarify the legal position.
(d) If the petitioners a:e now directed to go back and file appeal or pursue them, as the case may be, the final decision would be further delayed by some years. If K.M.C., were very serious about their objection in this regard, the point about the maintainability should have been taken immediately the first petition was filed and the Court asked to decide the question.
(e) The point involved for decision in these petitions is matter of general importance and is going to affect a very large number of citizens.
(f) The question being decided does not involve an inquiry into any disputed facts. In fact the decision being given is based on admitted facts only.
In the circumstances of the present cases and for the reason recorded above, we are of the view that Constitutional petition was the appropriate remedy in these cases and the appeal under rules 48 and 216 of the 1964 Octroi Rules is not an adequate and efficacious remedy."
12. We are in respectful agreement with the above observations of the learned Judges of the Division Bench and applying the test laid down in the above case to the present cases, we are of the view that the above petitions cannot be dismissed as not maintainable. Besides the fact that the controversy involved in the above petitions rests mainly on the interpretation and affect of the Judgments in case of the petitioner by the Supreme Court, (reported in PLD 1980 SC 84\ and that of the Division Bench of this Court in Civil Reference No. 5 of 1966, dated 24th March, 1981 with reference to Clause (93) of the Second Schedule to the Ordinance, the admitted position in the cases is that the appeals filed before the Tribunal by the petitioner against the order of 1st Appellate Authority in 1986 have not been heard and disposed of as yet and the learned counsel for the department is still unable to state when these are likely to be decided. It is also admitted before us that demand of taxes against the petitioner on account of rejection of their claim for exemption is huge and runs into millions and the department is pressing hard for its recovery and as there is no stay, the petitioner had to agree to pay the same in instalments of ten millions each.
We are, therefore, of the view that the departmental appeals of the petitioner pending before the Income Tax Appellate Tribunal since 1986 in the circumstances of the case can neither be treated as efficacious nor a speedy remedy so as to disentitle' the petitioner from invoking the Constitutional jurisdiction of this Court. We, therefore, do not agree with the learned counsel for the department that in the circumstances of the present cases, the above writ petitions are not maintainable.
13. Having dealt with the preliminary objection raised by the learned counsel for the respondents, we will now examine the merits of the other contention raised in the above cases. The only ground on which the respondents disallowed the exemption claimed by the petitioner on the income which arose to the petitioner for the assessment years 1980-81 to 1988-89 from the sale of 'Sharbat Rooh Afza' was that the manufacture and sale of 'Sharbat Rooh Afza ' was not subject of trust and as such was not covered under the 1st Proviso to clause (93) of the Second Schedule to the Ordinance. While narrating the facts of these cases we pointed out that upon remand of Civil Reference No. 5 of 1966 by the Supreme Court to this Court for decision of the remaining question referred by the Tribunal, this Court answered that question in its judgment dated 24th March, 1981, and relevant portion of the judgment is already reproduced in the earlier part of this order. The judgment dated 23rd March, 1981 in Civil Reference No. 5 of 1966 has not been challenged by the department so far. It I quite clear from the judgment in Civil Reference No. 5 of 1966 that the manufacture and sale of 'Sharbat Rook Afza was considered as part of the business donated to and held under the Trust. It was also found in the said .Judgment that same considerations were applicable to the income arising from the business held under the trust as to the income arising from the sale of 'Sharbat Rooh Afza There being a categorical finding of this Court that the manufacture and sale of 'Sharbat Rooh Afza' was part of the business donated to and held under the Trust, it was not open to the department to have treated that income differently. The first provision to Clause (93) of the Second Schedule to the Income Tax Ordinance, 1979 which is relied by the department in support of their conclusions reads as under:- "(93) Income of religious or charitable trusts, etc.--Any income which is derived form property or business held under trust or other legal obligations wholly, or in part only, for religious and charitable purposes and is actually applied of finally set apart for application thereto:- Provided that in the case of business, this clause shall not apply unless the business itself is the subject of and is carried on behalf of such trust or a religious or charitable institution and the income derived from such business is applied solely for religious or charitable purposes of the trust or institution and either:-
(i) the business is carried on in the course of carrying out of the religious or charitable purposes of the trust or the institution, or
(ii) the work in connection with the business is mainly carried on by the beneficiary of the trust or the institution."
14. On comparison of the 1st Proviso of Clause (93) of the Second Schedule of the Ordinance with the 1st Proviso of section 4(3)(i) of the Act, it is quite clear that except for the addition of words "itself is the subject of and" which were added between the words "business" and "is" in the proviso, the rest of the 1st Proviso to Clause (93) of the Second Schedule to the Ordinance is identical to the 1st Proviso of section 4(3)(i) of the Act. The addition of words "itself is the subject of and" in the 1st Proviso to Clause (93) of the Second Schedule to the Ordinance in our view has not in any manner affected the availability of the exemption to the petitioner, under the decision of Supreme Court and of this Court in Civil Reference No. 5 of 1966 in the case of petitioner wherein it was categorically held that manufacture and sale of 'Rooh-e-Afza Sharbat' was part of the business Donated to and held under the Trust. It is no body's case that the income arising to the petitioner from the sale of 'Sharbat Rooh-e-Afza' was not applied for or finally set apart for advancing the object of the petitioner's Trust. In these circumstances we are clearly of the view that the income arising to the petitioner from the sale of 'Sharbat Rooh-e-Afza' was also entitled to exemption under Clause (93) of the Second Schedule to the Ordinance as an income arising from the business carried on behalf of the petitioner's Trust. We accordingly, allow the above petitions and declare the orders passed by the Income Tax Officer and the 1st Appellate Authority holding that the petitioner was not entitled to exemption under Clause (93) of the Second Schedule to the Income Tax Ordinance, 1979, on so much of the income which it derived through the sale of 'Sharbat Rooh- e-Afza' for the assessment years 1980-81 to 1988-89 was without lawful authority and of no legal effect. There will be no order as to the costs in the circumstances.