' Ch. Muhammad Nazir Ahmad petitioner being the Director of Aizad Beverages Limited, Faisalabad filed a return of his total income for the assessment year 1984-85. An assessment order was accordingly passed by the concerned Income Tax Officer on 30-4-1985. Subsequently, on 25-6- 1986 the respondent No,1 Income Tax Officer issued to the petitioner a notice under Section 65 of the Income Tax Ordinance, 1979 claiming that the income for the year 1984-85 had been under- assessed and called upon the petitioner to file a fresh return of his total income by 8-7-1986. The petitioner filed the requisite return. The respondent No,1 then asked the petitioner to furnish documentary evidence in support of the foreign remittances claimed in the return filed by him. The petitioner took various objections and exceptions to the proceedings of the Income Tax Officer including his competency and jurisdiction to reopen the assessment. The respondent No,1 ignored the objections and initiated certain steps to probe into the origin and source of the said remittances.
2. The action of the Income Tax Officer was impugned through Writ Petition No,3286/1988. This writ petition was disposed of by my learned brother Muhammad'Afzal Lone, J on 21-6-1988 with the observation that the proceedings as to re-opening of the case on the ground of receipt of foreign remittances in question shall remain stayed till one week from the date of service, on the petitioner, of the order of the I.T.O. Disposing of the petitioner's objections, to enable him to seek remedy before the appropriate forum, in case the order goes against him. The petitioner filed the objections before the I.T.O. On 23-6-1988 which he rejected the same day.
3. The petitioner then filed the instant Writ Petition No,3597/88 contending therein that the threatened action of the respondent No,1 is violative of the well-settled principles regulating the administration of Income Tax Ordinance, 1976 and is, therefore, without lawful authority. The contentions earlier raised with regard to immunity from probe into the source of foreign remittances were reiterated. This writ petition came up for hearing before Mr. Justice Muhammad Afzal Lone on 3-7-1988. The learned Judge stayed the proceedings before the Assessing Officer.
The petition was later on admitted to regular hearing on 5-10-1988 and the stay was confirmed.
The relevant paragraph is as under:- "Notice in the C.M. Application in terms of Articles 199(4) of the Constitution has already been given to the learned Law Officer concerned. Since the petition has been admitted to regular hearing, continuation of the assessm ent proceedings before the I.T.O. Shall lead to further complications and needs to be stayed. I order accordingly."
4. It is stated that during the continuance of the above order Haji Ahmad, Inspecting Assistant Commissioner respondent No,1 in Crl. Org.16-W/1989 passed a final order on 29-12-1988 which stands impugned in this petition (W.P.3597/1988) as amended vide order dated 16-10-1990.
5. Crl. Org.16-W/1989 has also been filed by the petitioner against Mr. Haji Ahmad, Inspecting Assistant Commissioner, Ghulam Nabi, Income Tax Officer and Tauqir Akbar, Income Tax Officer respondents for violating the prohibitory order dated 3-7-1988 as extended from time to time by this Court. Learned counsel for the petitioner requests for putting the party back into position obtaining before the violation of the stay by declaring the assessment order as nullity.
6. The respondents have maintained that the Writ Petition No3286/88 had not been finally disposed of on 21-6-1988 and the proceedings taken on 21-6-1988, 29-6-1988 and 3-7-1988 in the two writ petitions are so interrelated that none of them can be considered isolatedly. Hence, according to them, the order dated 21-6-1988 was an interim order which by virtue of Article 199(4A) of the Constitution ceased to have effect on the expiration of period of six months following the day on which it was made i,e. 21-6-1988. They have also controverted the other points raised in the writ petition.
7. The parties are at variance on many questions of law and fact but presently the controversy has squeezed down to the point relating to the alleged violation of the stay order and its effect on the impugned assessm ent order because the vires of the impugned assessment order will be looked into on merits only if it is not violative of any order passed by this Court. As already stated a restraining order was made initially in Writ Petition No,3286 on 21-6-88 with the direction that the proceedings as to re-opening of the case on the ground of receipt of foreign remittances in question shall remain stayed till one week from the date of service, on the petitioner, of the order of the I.T.O. Disposing of the petitioner's objections, to enable him to seek remedy before the appropriate forum, in case the order goes against him. On 3-7-1988 an order was passed in Writ Petition No,3597/88 which had the effect of staying the proceedings taken by the I.T.O.
8. It may pertinently be noted that the proceedings in the writ petition No,3286/88 came to an end on 21-6-1988 whereafter nothing was left for the petitioner to urge further in the same. The order dated 29-6-1988 was passed in pursuance of clarification sought by the petitioner which cannot be interpreted to mean that the writ petition was still pending. The order dated 3-7-1988 referred to by the respondents was in fact passed in a fresh Writ Petition No,3597/88 for a cause arising out of a subsequent order of the I.T.O. That order was neither passed in Writ Petition No,3286/88 nor in continuation of order dated 21-6-1988. The co-relationship of a substance having the same origin does not essentially mean that the litigation earlier finally, disposed of shall be deemed to be pending A if the matter is brought before a Court subsequently through an independent suit, application or petition of a constitutional nature. I am, therefore, of the view that the writ Petition No, 3286/88 stood finally disposed of by the order dated 21-6-1988. At the time of impugned assessm ent this matter was not pending adjudication within the meaning of Article 199(4A) of the Constitution. The proceedings before the Assessing Officer had been stated by order dated 3-7- 1988 passed in Writ Petition No,3597/88. The said order was still continuing when the assessment order dated 29-12-1988 was passed. As the period of six months mentioned in Article 199(4-A) of the Constitution had not yet expired the respondents were not competent to pass the impugned order.
9. In the above circumstances the writ petition is accepted with costs and the impugned assessm ent dated 29-12-1988 is set aside having been passed in violation of the stay order granted by this Court on 3-7-1988.