JUDGMENT MALIK MUHAMMAD QAYYUM, J.- This judgment shall dispose of W.P. Nos. 12443/1994 and 667 of 1995 in which common questions of law arise for determination.
2. The petitioner, State Cement Corporation of Pakistan, a company registered under the Companies Ordinance, 1984 in the public sector. It feels aggrieved of the decision of respondent i. e. Income Tax Authorities to treat the "Cement Development Fund" received by it under Ordinance II of 1979 as income fo the purpose of the Income Tax Ordinance, 1979.
3. Before these petitions could be argued no merits, learned counsel for respondent has raised a preliminary objection that against the decisions of respondent dated 7.8.1994, the petitioner has already field appeals which are pending-before the Income Tax Appellate Tribunal where they have raised the same dispute as to whether or not any income tax is payable on the cement development funds received by the petitioner company under Ordinance II of 1979. This fact is not denied by the learned II of 1979. This fact is not denied by the learned counsel for respondent who has, however, submitted that the petitioner had earlier filed W.P. No. 6584/1994 which was disposed of with the direction that the plea raised in the constitutional petition may be repeated before the Commissioner of Income Tax before whom the proceedings are pending.
4. I fail to see how this contention of the learned counsel for petitioner advances his case as to the maintainability of the present constitutional petition. No doubt the petitioner had raised various pleas before the Commissioner of Income Tax who by hir detailed order dated 7.8.1994 has rejected the same and against his order the petitioner has gone to the Income Tax Appellate Tribunal. As the petitioner has chosen its remedy by filing appeals before the Appellate Tribunal, these petitioner are clearly not maintainable. It is also to be noted that if the decision of the Appellate Tribunal goes against the petitioner, it can come to this Court by filing an application under Section 136 of the Income Tax Ordinance, 1979 which is to be heard by a Division Bench of this Court. The petitioner cannot be allowed to by-pass the normal procedure.
5. Learned counsel for the petitioner has attempted to argue that notwithstanding filing of the appeal by the petitioner, these petitioners are maintainable as it has been held by the Supreme Court in various cases that it is not essential to file a departmental appeal when the matter relates to the interpretation of statutory instrument and the matter can be brought directly to this Court.
5. Learned counsel for the petitioner has attempted to argue that notwithstanding filing of the appeal by the petitioner, these petitioners are maintainable as it has been held by the Supreme Court in various cases that it is not essential to file a departmental appeal when the matter relates to the interpretation of statutory instrument and the matter can be brought directly to this Court.
6. There may not be any cavil with this proposition but here the position is different as the petitioner has itself invoked the jurisdiction of the Income Tax Appellate Tribunal by filing appeals and there is no reason also to why the Appellate Tribunal should not be allowed to decide the questions which are arising in these petitions.
In view of what has been stated above, these petitions are held to be not maintainable at this stage and dismissed, leaving the parties to bear their own costs.