' This order will dispose of Writ Petitions Nos. 1396/1973, 2139/073, 1002/1974 and 1532/1974 since the facts and some of the points of law are common. The crucial point involved in all the four cases is whether the prosecution of the petitioners for an offence under sections 51(2) and 52 of the Income-tax Act launched on a complaint made by an Income-tax Officer to whom the cases of the petitioners have been transferred after the decision by an Income-tax Officer of a different circle is legal in view of the provisions of subsection (2) of section 54-A of the Income-tax Act which provides that the complaint can be made by an Income-tax Officer "who is competent to make assessm ent under this Act in the case to which the offence alleged to have been committed relates". In one of the cases i,e, Writ Petition No, 1532/1974 some additional points also rise.
2. Writ Petition No, 1002/1974 is liable to be dismissed since this point does not arise in that case. It is conceded in para. 3 of the petition that the complaint was lodged by the same Income-tax Officer who had passed the order of re-assessment of Income-tax and had issued notice under section 28(3) of the Income-tax Act for levying a penalty against the petitioners in that case. Before dealing with the points involved in other cases, however, it will be necessary to give briefly the facts of these writ petitions.
3. The facts in Writ Petition No, 1396/1973 are that a return for the assessment year 1971-72 was filed by the petitioner on 23-8-1971 in A-Circle, Lyallpur. The assessment was finalised by the Income-tax Officer of that Circle on the 3rd of April, 1972. The petitioner had deposited a sum of Rs, 71,C00 in the Bank which was not disclosed as income in the return. He claimed before the Income-tax Officer that a sum of Rs, 34,300 out of this amount belonged to his brother-in-law Muhammad Younas, Rs, 6.400 belonged to his wife which she had saved from the amount given to her for monthly expenses, and the remaining amount was his own which he had deposited in the Bank on account of fear of demonetisation. The I. T. O. Did not accept this explanation and he added the above amount to the total income of the petitioner and assessed him to a sum of Rs , 86,123. He also issued a notice to him under section 28(3) for concealment of this income. Sometimes after the passing of this order, the jurisdiction to deal with this case was transferred by an order dated 27-1- 1973 to the Income-tax Officer (Investigation). The transferee officer filed a complaint against the petitioner for offences under sections 51(2) and 25 of the Income-tax Act.
4. According to the facts given to me by the learned counsel for the petitioner in Writ Petition No, 2139 of 1973, the assessee submitted a return for the assessment year 1971-72 to the Assistant Income-tax Officer, C-Circle, Lahore, showing a total income of Rs, 12,000. It was a no-account case and for this reason the income was computed by the petitioner by applying a percentage of profit on the sales amounting to Rs, 1,40,000. Later on it transpired that certain sales bad not been accounted for in the computation statement. A revised return was, therefore, filed on the basis of estimated sales of Rs, 4,00,000 from the whole-sale business and Rs, 64,000 from the retail business. The expenses were, however, estimated at Rs, 16,720, thus leaving a net profit of Rs, 11,280.
On this calculation the estimated profit was declared to be the same sum of Rs, 12,000. The Assistant Income-tax Officer finalised the assessment on 20th of June, 1972. He rejected the estimates of the petitioner. The net income was assessed by him at an amount of Rs, 29,205. A notice under section 28 was issued for disclosing incorrect particulars of income-tax under the self-assessm ent scheme. Thereafter the case was transferred by the Central Board of Revenue to the Income-tax Officer (Investigation), Circle-I, Lahore; who filed a complaint's for offence under sections 51(2) and 52 of the Income-Tax Act before the Special Judge. An objection was taken by the petitioner to the jurisdiction of the Special Judge, but the same was repelled by an order dated 3rd of September, 1972. The petitioner filed a criminal revision petition before the High Court, but the same was dismissed on the ground that the appropriate remedy was to invoke the writ jurisdiction of the High Court.
5. In Writ Petition No, 1532/1974 the facts are that the petitioner is a partner in a partnership firm styled as Fateh Muhammad, Abad Ali, Lyailpur. A return showing the income of Rs, 4,704 was filed by the firm or the period 23-8-1969 to 30.6-1970. The Assistant Income-tax Officer, Circle, Lyallpur registered the firm under section 26-A on 4-9-1970 and sassed it to a total income of Rs, 17,554 vide copy of the order, Annexure A'. Later on a notice under section 34 was issued and as a result of re- assessm ent, the net income was found to be Rs, 55,849. The net income was raised inter alto by addition of Rs, 20,000 alleged to have been deposited n Habib Bank Ltd. In a Savings Bank Account.
A notice under section 28(3) of the Income-tax Act was also issued to the petitioner with a view to pose penalty. Thereafter the case was transferred and a complaint for offences under sections 51(2), 52 and 52-A of the Income-tax Act was committed by the Income-tax Officer (Investigation), Circle-I, Lahore respondent No, 2) to the Special Judge, on the basis of sanction of the central Board of Revenue which was communicated on 28-2-1973 under e signature of Secretary (Taxes), Central Board of Revenue. The petitioner raised the following objections before the Special Judge to the guilty of the complaint and the jurisdiction of the Special Judge:-
(1) The complainant has no locus standi.
(2) There is no valid sanction for the petitioner's prosecution as required by law for the following reasons:-
(a) There is no Central Board of Revenue in existence in the eye of law as there has been no Notification in terms of clause (9) of the Pakistan (Adaptation of Existing Pakistan Laws) Order, 1947;
(b) that the sanction was not accorded by the Ist Secretary (Taxes), but was signed by somebody else on his behalf which is without lawful authority and of no legal effect;
(c) that the sanction was in respect of offences under sections 51(2) and 52-A while the complaint is in respect of sections 51(2), 52 and 52-A of the Income-tax Act.
(3) The sanction and complaint both relate to Abad Ali c/o Fateh Ali Abad All whereas the accused is Abad Ali c/o Fateh Muhammad Abad Ali.
6. The learned Special Judge found all the objections except objection 2(c) to be without force. He held the trial under section 52 of the Income-tax Act to be incompetent. He, therefore, directed the trial to proceed under sections 51(2) and 52-A of the Act.
7. As stated above, the point which is common in these petitions is whether the complaint for prosecution could be lodged before the Special Judge by an Income-tax Officer to whom the case had been transferred later, after the termination of the proceedings of the assessment or re- assessm ent. The relevant provision is section 54-A subsection (2) clause (a) which requires interpretation. This clause provides that the Special Judge shall take cognisance of and have jurisdiction to try an offence triable under subsection (1) only upon a complaint in writing made by an Income-tax Officer who is competent to make asssesment under this Act in the case to which the offence alleged to have been committed relates. Syed Muhammad Zafar, Advocate, who appeared for the petitioner in Writ Petition No, 1'296/1973 argued this point and his arguments were adopted by the learned counsel in the other petitions. Mr. Zaffar argued that the complaint can be lodged only by an Income-tax Officer competent to make assessment in the case to which the offence alleged to have been committed relates. In a case in which the assessment has already been made, an officer competent to make assessment is the officer who has actually completed the assessm ent. The transfer of jurisdiction after the completion of the assessment will not make the transferee Income-tax Officer competent to make assessment in that case. He also attacked the transfer of a completed case as without jurisdiction. He referred to Bidi Supply Co. v. Union of India (0 for interpretation of the words "a case". In this case the Supreme Court of India bad interpreted the word 'case' as meaning 'a case initiated and completed. He also referred to Dayaldas Khushiram v. Commissioner of Income-tax (Central) (2) and Manordas Khalida, v. G. R.
Desai (3) in support of the same proposition.
8. In sub-para. (c) of para. 5 of Writ Petition No, 1396 of 1973 it was alleged by the petitioner that the transfer order of the petitioner's case was passed under section 7-A of the Act. This was controverted in the Departmental Report and it was stated there that the Central Board of Revenue had transferred the case to the Commissioner of Income-tax (Investigation), Lahore who had transferred it under section 5(5) to the Income-tax Officer, Circle IV, Lahore (Investigation). The learned counsel urged that the only provision dealing with the power to transfer any case from one I. T.
0. To another I. T.
0. Is in subsection (7-A) of section 5. This provision envisages the transfer of any case as also any proceedings in respect of case from one Income-tax Officer to another. He argued that the respondents cannot claim the benefit of this subsection for the reasons; firstly that the transfer is not made (as stated in the report) under this provision and secondly that the language of the subsection which appears
(I) (1966) 29 I T R. 717 (2) AIR 1940 Bom. 234
(3) (1959) 37 1 T R 302 (Born). wide enough to include even proceeding in respect of any case cannot warrant the transfer of a proceeding after the case is finalised by assessment
9. The learned counsel also drew an analogy between section 54-A of the Income-tax Act and section 195 of the Criminal Procedure Code in which under its sub-clause (a), the jurisdiction to try the offence is subject to a complaint being made by the "public servant concerned". He relied on Meer Ahmad and others v. Nlaz Muhammad and 2 others (1) in which this phrase was interpreted as meaning an Officer whose order was contravened. Lastly he relied upon Satrugana Behera and another v. Emperor (2) in which the words "competent to try the offence" were interpreted as meaning "competent to try the same offence".
10. The sum and substance of the arguments of the learned counsel Is that the word 'case' whether used in section 5 or used in section 54-cannot mean a case which has been completed. It could mean only a case which is pending before an Income-tax Officer and requires determination. The authorities relied upon by the learned counsel for the interpretation of 'case' are no longer of any relevance in view of the changes gradually introduced by the Legislature in the relevant law. In Dayaldas Khushiram v. Commissioner of Income-tax (3) Sir John Beaumont. C. J. Observed that "the right to transfer cases or classes of cases in which an assessment has been completed. In such a case the assessee has acquired -certain rights e.g. Of appealing to a particular Assistant Commissioner and of applying for review to a particular Commissioner". In this manner the High Court of Bombay treated only the provision of section 64 regarding plea of assessment but also the form of appeal as a matter of right, although according to the established principle provision of appeal in a Statute is a vested right while the regulation of form of appeal is a procedural matter.
However, in view of the emphasis on section 64 wherefrom it was deduced that the assessee has a right to be assessed by the Income-tax Officer of the area having jurisdiction in the place of business of the assessee, subsection (5) was added to section 64 in order to confer inter alia jurisdiction upon Income-tax Officer to whom a case is transferred under section 5(7-A). The same High Court again held after independence in Manordas Kalidas v. G. R. Desai and others (4) that the expression 'cues or classes of cases in subsection (2) of section 5 of the Act did not refer to completed assessm ent. It was further held that a competent assessment, after it had been reviewed by the issue of a notice under section 34, may become a pending case on its re-opening but until then it was not a case within the meaning of section 5(2) of the Act. In Bidi Supply Co. v.
The Union of India and others the Supre ne Court of India held that a case is started when notice under section 22(2) is issued calling upon the assessee to file the return of his total income during the previous year. These notices and return are to be confined to a particular assessment year, and subsection (7) of section 5 contemplates the transfer of such a case I e. The assessment case for a particular year. It was held that subsection (7-A) of section 5 did not contemplate a transference of case which might arise in future.
This last case of Indian jurisdiction cannot be helpful in view of the addition to the explanation to subsection (7-A) of section 5 of the words 'and includes all proceedings under this Act which may be commenced
(I) PLD 1972 Pesh. 128 (2) AIR 1944 Pat. 328
(3) AIR 1940 Boni. 234 (4) (1959) 37 I T R 302 after the date of such or direction in respect of any year', thus rendering' it permissible to transfer or deal with cases which might arise in future.
11. The word 'case' in section 5 of the Act has recorded statutory interpretation in the explanation to subsection (7-A) of section 5 in the following manner:- "In this section, the word 'case' in relation to any person whose name is specified in an order or any direction issued thereunder, means all or any proceedings under this Act in respect of any year which may be pending on the date of such order or direction or which may have been completed on or before such date, and includes all proceedings under this Act which may be commenced after the date of such order or direction in respect of any year."
The words underlined by me clarify that the word 'case' for the purpose of distribution or allocation of business as well as transfer from one Income-tax Officer to another, includes even a case which has been completed. In view of this interpretation clause added to section 5, the authorities referred to by the learned counsel are not at all relevant. This finding disposes of Writ Petitions Nos.
1396/1973 and 2139/1973.
12. The argument about their being any analogy between section 195 (1)(a), Cr. P. C. And the words of clause (a) of subsection (2) of section 54-A, Income-tax Act is fallacious. Clause (a) of subsection (1) of section 195, Cr. P. C. Requites initiation of criminal proceedings in certain cases on the complaint of 'the public servant concerned'. Section 54-A, Income-tax Act provides for a complaint not by the Income-tax Officer concerned but an Income-tax Officer competent to make assessm ent in the case to which the offence alleged to have been committed relates.
13. In Writ Petition No, 1532/1974 Mr. Javed Hashmi, Advocate, raised a number of other objections.
Firstly he argued that the Central Board of Revenue whose approval is necessary for launching a prosecution vide section 54 of the Income-tax Act is not and has never been legally in existence in Pakistan since there has been no Notification in terms of clause (9) of the Pakistan (Adaptation of Existing Pakistan Laws) Order, 1947.
14. In order to appreciate this point, it is necessary to refer to the provisions of the Central Board of Revenue Act, 1924. This Act authorised the Central Government to constitute a Central Board of Revenue consisting of one or more persons and to appoint the members thereof. It provided that the Board shall be subject to the control of the Central Government in the exercise of such powers and the performance of such duties as may be entrusted to it by that Government or by or under any law. The Central Board of Revenue which initially consisted of two members was constituted by the Governor-General-in-Council on the 29th of March, 1924 vide Gazette of India, Part I, page 256.
15. From the 15th of August, 1947, two independent dominions were set up in India which were known as 'India and Pakistan'. In order to set up these two independent dominions, the British Parliament enforced the Indian Independence Act, 1947 which made provisions inter alia for matters consequential on or connected with the setting up of the dominions. Section 18(3) of the Act provided that except as otherwise expressly provided in the Act, the law of British India and of the several parts thereof existing immediately before the appointed day (I.e. 15-8-1947) shall so far as applicable *[Here In italics] and with the necessary adaptation continue as the law of each of the new dominions and the several parts thereof until other provision is made by laws of the Legislature of the dominion in question or by any other Legislature or other authority having power in that behalf. In order to make adaptations in exercise of the powers conferred by section 18(3) of the Indian Independence Act, the Governor-General of Pakistan issued on the 14th of August, 1947 Order No, 20 known as the Pakistan (Adaptation of Existing Pakistan Laws) Order 1947. Clause (2) of this Order defined 'Existing Pakistan Law' as meaning Inter alia any Act or rule which immediately before the 15th of August 1947 had the force of law in the whole or any part of the territories which from that date formed the territories of the Dominion of Pakistan. Clause (9) provided that any reference in an existing Pakistan Law to a tribunal, authority, officer, or official body whose jurisdiction or authority immediately before the 15th of August, 1947 extended to the whole of British India or over parts of British India which on the said date fell partly within the Dominion of India and partly within the Dominion of Pakistan shall be construed as reference to such tribunal, authority, officer or official body as the appropriate Government may by Notification in the official Gazette constitute or appoint in that behalf and any such direction may be given so as to have retrospective effect from 15-8-1947.
16. The argument of Mr. Javed Hashmi, Advocate, is that in view of the provision of clause (9) it was incumbent upon the Government of Pakistan to constitute the Central Board of Revenue by a Notification in the official Gazette. He stated that no such notification was ever issued by the Government constituting the Central Board of Revenue and for this reason the existing Board of Revenue cannot be deemed to be legally constituted. Section 53 of the Income-tax Act provides that a person shall not be proceeded against for the offeuces under section 51, 52 or 52-A of the Act except with the approval of the Central Board of Revenue. Since there is no legally constituted Central Board of Revenue, he argued, the approval for the prosecution of the petitioner given by the illegally constituted Central Board of Revenue is a nullity and cannot give jurisdiction either to the Income-tax Officer to make a complaint against the petitoner in Writ Petition No, 1532/1974 or to the Special Judge to try the same.
17. Mr. Ilyas Khan, Advocate, who appeared for the respondents argued that the objection about the constitution of the Central Board of Revenue should in the first instance have been raised at the time of assessm ent before the Income-tax Officer since this objection has the effect of calling in question the assessm ent and the appointment of other authorities under the Income-tax Act including the Income-tax Officer who can be appointed by the Central Board of Revenue. On merits he argued that the Central Board of Revenue had already been constituted in British India in the year 1924 and that authority, therefore, existed as a Department of the Government of India. It was not, therefore, necessary to constitute another Board of Revenue. Only appointment of a member was required to be made under the provisions of clause (9) of Governor-General's Order No, 20 and this appointment had been made on the 29th of August, 1947 to have effect retrospectively from 15th August, 1947. He referred to the following Notification published in the Gazette of Pakistan of August 29, 1947 Part I:- "No, 3.-Mr. J. B. Sherer, 0. B. E., I. C. S. Is appointed Joint Secretary to the Government of Pakistan, Ministry of Finance (Revenue Division), and Member, Centeral Board of Revenue with effect from the 15th August, 1947.
' Mr. A. A. Burney is appointed Deputy Secretary to the Government of Pakistan, Ministry or Finance (Revenue Division) and First Secretary, Central Board of Revenue with effect from the 15th August, 1947.
' Mr. Zafar Ullah is appointed Under Secretary to the Government of Pakistan, Ministry of Finance (Revenue Division) and Second Secretary, Central Board of Revene with effect from the 15th August, 1947.
' Mr. L. G. O. Leary is appointed Specialist Officer, Central Board of Revenue with effect from the 15th August, 1947."
18. Confronted with this Notification Mr Javed Hasimi shifted his stand and raised a point which was not taken in the writ petition. He argued that Mr. J. B. Sherer was appointed by this Notification as Member, Central Board of Revenue by Mr. V. A. C. Turner, Secretary to the Government of Pakistan under whose signatures the Notification was issued, and not by the Governor-General who was the only competent authority to make the appointment on behalf of the Central Government. He referred to the definition of the term "Central Government" in the General Clauses Act, 1897. There it is defined as meaning the Gnvernor-General. He stated that the Notifications of appointments of successive members were couched in the same language and were open to the same objection.
He also relied upon section 17 of the Government of India Act which provided that all executive actions shall be expressed in the name of the Governor-General and urged that the Notification of appointment having not been expressed in the name of the Governor-General it cannot prove that the appointment was made by the Governor-General. He relied upon Sind Barlcks Syndicate v.
Tuhilrumani and another, (1) and Qamar-uz-Zaman Khan v. Punjab Province (2) for his argument that the provision of section 17, Government of India Act was mandatory. By way of analogy he referred to some cases under section 175 of the Government of India Act which took the view that the provision of that section that all contracts made in the Executive Authority of the Federation shall be expressed to be made by the Governor-General, was mandatory. The learned counsel argued that the principle of these authorities can be pressed into service since the language of sections 17 and 175 was similar. These cases are Muhammad Hasham Khan v. Provincial Government, N.-W. F. P. (3)., Qamar-uz-Zaman Khan v. Punjab Province and others, Province of West Pakistan v. Mind & Patel Co. (4), Federation of Pakistan v. Amin Agencies (5), LaClaire Pakistan Corporation v. Islamic Republic of Pakistan (6). He urged that where an Act provides for certain thing to be done in a particular manner, it must be done in that manner or not at all and if the appointment is not by a Notification where it is required to be made in that manner, the appointment cannot be deemed to be legal. He referred to Muhammad Aslam v. The Commissioner (7) Qadar Dad and others v. Sultan Bibi and another (8) and Muhammad Sharif v.
Muhammad Rafique etc. (9).
(1) PLD 1956 Kar. 305 (2) PLD 1956 Lab. 612
(3) PLD 1950 Pesb. 13 (4) PLD 1959 Kar. 782
(5) PLD 1957 Kar. 663 (6) PLD 1957 Kar. 2E5
(7) PLD 1949 Lab. 164 (8) PLD 1956 FC 129
(9) PLD 1968 Lah. 263
19. Mr. Ilyas Khan raised preliminary objections in regard to this point also and argued that Mr. Javed Hashmi could not be allowed to urge this point for several reasons. He objected that this is a new point which also involves a question of fact. It was raised neither before the Special Judge in the objections raised there, nor before this Court in the writ petition. He referred to various authorities in this connection to which it is unnecessary to refer since it is an established proposition of law that a person cannot be allowed to make out a new case which involves question of fact at the arguments stage of a writ petition. He also contended that the objection being in the nature of quo warranto, it cannot be allowed to be raised unless the persons whose appointment is challenged as illegal, are impleaded as parties.
20. The first question is whether there is substance in the argument that the Central Board of Revenue was required to be constituted again in Pakistan under section 9 of the Governor- General's Order 20. Before determining this question I may observe that in my view the argument of Mr. Ilyas Khan that the point about the necessity of the constitution of the Board of Revenue should have been taken and urged before the Income-tax Authorities is not without force. The Central Board of Revenue exercises functions under various enactments e.g. The Income-tax Act. The Central Excise & Salt Act, Wealth Tax Act, Gift Tax Act, Sales Tax Act, Customs Act and Estate Duty Act. It is the first authority described in section 5 of the Income-tax Act, other authorities being the Commissioner of Income-tax, Income-tax Officers etc. Since the year 1962 and by virtue of the provisions of Ordinance XXXI of 1962 which amended the Income-tax Act, the Central Board of Revenue Is also the appointing authority of other Income-tax authorities. An attack on the existence of the Board of Revenue by the petitioner who was assessed after 1962 is an attack on the vires of the appointment of the other Income-tax Authorities and ultimately on the legality of the assessm ent. The challenge to the constitution of Board of Revenue should have been thrown at the time of assessm ent, otherwise it would lead to an anamolous situation in so far as the assessment is treated as legal while the approval for prosecution on the basis of that assessment is attacked as a nullity. The dictum in Ghulam Mohy-ud-Din v. Chief Settlement Commissioner (1) applies to this case and the writ ought to be refused. The principle upon which the writ is refused in cases where no objection to jurisdiction of the tribunal was raised before it was explained thus: "The principle upon which the writ is refused in such cases is not that jurisdiction has been conferred on the Tribunal concerned by waiver and acquiescence but that even though the impugned order is without jurisdiction, the person seeking to have it quashed should not be granted that discretionary relief as he had stood by and allowed the tribunal to usurp a jurisdiction which it did not possess knowing that the tribunal concerned was committing such an illegality in consequence of something done by that person himself."
21. The petitioner in these circumstances has by his conduct disentitled himself to any relief. I agree with the argument of Mr. Ilyas Khan or merits that after the original constitution in India of the Central Board o Revenue in 1924, the power to constitute a Central Board of Revenue under the Central Board of Revenue Act, 1924 was exhausted and was not necessary
(1) PLD 1964 SC 829 to be re-exercised since the Central Board of Revenue existed thereafte as a Department of the Government of India. It may be noted that section 18(3) of the Indian Independence Act continued the existing laws so far as applicable and with the necessary adaptations until other provisions were made by the Legislature of the Dominions. Section 9 of the Act authorised the Governor- General to make such provisions as appeared to him to be necessary or expedient for inter alia bringing the provisions of the Act into effective operation; (2) for dividing between the two Dominions powers, rights, properties, duties and liabilities of the Governor-Generalin-Council; (3) for making omissions from, addition to, and adaptations and modifications of the Government of India Act, 1935, and the orders in-Council, rules and other instruments made thereunder, in their application to the separate new Dominions; (4) for removing difficulties in connection with the transaction to the provisions of e Act; (5) for authorising the carrying on the business of the Governor-General-in-Council between the passing of the Act and the appointed day (15-8-1947) otherwise than in accordance with the provisions in that behalf of the Ninth Schedule to the Government of India Act; (6) for enabling agreements to be entered into, and other acts done, on behalf of either of the new Dominions before the appointed day; (7) for authorising the continued carrying on for the time being on behalf of the new Dominions, of services and activities previously carried on on behalf of British India; (8) for regulating the monetary system and any matters pertaining to the Reserve Bank of India; and (9) for varying the constitution, powers or jurisdiction of any Legislature, Court, etc.
22. It will be clear from section 9 that the British Parliament set in motion from the date of enforcement of the Indian Independence Act the machinery for setting up the two independent Dominions w,e,f, 15-8-1947 and made provisions for a smooth transition from a United British India to two independent countries. The first step in this direction was taken on the 19th July, 1947 when the Governor-General-in-Council issued the Executive Council Provision Order, 1947 (G. G.
0. 1). A Department corresponding with each existing department and bearing the same designation with the addition of the word 'Pakistan' was created for handling cases exclusively or predominantly concerning the future Dominion of Pakistan. Another relevant Order is G. G. O. 12 known as The Indian Independence Income-tax Proceedings Order, 1947 which was enforced on the 12th of August, 1947. It recognized the same Tax Authorities under section 5 of the Income-tax Act for both the Dominions. The expression 'Tax Authority' was defined as meaning inter alia "The Income-tax Authorities mentioned in section 5 of the Indian Independence Act". Clause (3) of this Order made provision for cases where "after the appointed day the case of an assessee is transferred from one Dominion to the other by agreement between the Central Board of Revenue of the two Dominions" G. G.
0. 12 thus recognized the Central Board of Revenue to have been constituted and to be a Tax Authority under the Income-tax Act in both the Dominions. This is a necessary consequence of the creation of Departments for the Dominion of Pakistan corresponding with the existing Departments.
Clause (9) of G. G.
0. 20 known as the Pakistan (Adaptation of Existing Pakistan Laws) Order, 1947 which provided that any reference in an existing law to a tribunal or authority, officer or official body whose jurisdiction or authority immediately before 15-8-1947 extended to the whole of British India or over I parts of British India which on the said day fell partly within the Dominion of India and partly within the Dominion of Pakistan shall be construed as references to such tribunal, authority, officer, or official body as the appropriate Government may by Notification in the official Gazette constitute or appoint in that behalf, can almost be said to have envisaged two alternatives, one of constituting an authority or tribunal and the other of appointment of that tribunal or authority. Where the constitution of an authority is recognized, what could be required was only to make appointment to it. Mr. Javed Hashmi did not dispute the proposition that in case of existing departments only appointment was required to be made. I am therefore in full agreement with the argument of Mr. Ilyas Khan that the constitution of a Central Board of Revenue for Pakistan was not necessary.
23. This also appears to be the departmental interpretation since 1947 since the Government appointed Mr. Sherer as the Member of the Central Board of Revenue and made thereafter successive appointments and additions of members to that authority during the last more than 28 }ears. The same also appears to be the legislative interpretation. As stated above by Ordinance XXXI of 1962 the Legislature stepped into confer powers upon the Central Board of Revenue to appoint the other authorities mentioned in section 5 of the Incom-tax Act. By the same Ordinance sub-clause (aa) was inserted in section 2 of the Central Excise and Salt Act in order to define the expression 'Central Board of Revenue' as meaning the Central Board of Revenue constituted under the Central Board of Revenue Act, 1924. Certain consequential changes were made in other sections of that enactment. It is not necessary to make detailed reference to all the provisions, It may be sufficient to state that the powers heretofore exercised by the Central Government under various sections of the Act were conferred upon the Central Board of Revenue by substitution of the expression 'Central Board of Revenue' for 'Central Government' (see for illustration's sake sections 2 and 8). The Central Board of Revenue was made the Chief Customs Authority under the Sea Customs Act by the same Ordinance XXXI of 1962. Powers were conferred upon this authority to make appointments of officers of Custom under section 6 of the Act. The Estate Duty Act, 1950 was published in the Gazette of Pakistan on the 23rd January, 1950. It recognised under subsection (3) of section 2 the Central Board of Revenue as constituted under the Central Board of Revenue Act, 1924. It is the first authority under the Act vide its section 3(a) and by Ordinance XXXI of 1962 it was given the power to appoint Controllers of Estate Duty. Another important legislation is the Gift Tax Act, 1963 whereby the Central Board of Revenue as constituted under the Act, 1924, was recognised the Board. In consonance with the principles enunciated and laid down in Ordinance XXXI of 1962, the Board by sections 8 to 10 of this Act was empowered to confer powers exerciseable under the Act upon various authorities. These legislations have the effect of an implied declaration of the legislative intent in section 9 of Governor-General's Order XX of 1947. They recognise that the Board already stood constituted as required by the Act of 1924 and that any further formal constitution of the same in 1947 was unnecessary. The judicial interpretation given by me is therefore in accord with the legislative as well as the administrative or executive interpretation.
24. I would avoid, and would not be party to, construing an instrument in a manner so as to create financial chaos in the country by eliminating a necessary superior authority under various Taxation Statutes. It is my duty as a Judge to make such construction of the provisions of G. G.
0. 20 as shall suppress the mischief and advance the remedy. See Maxwell on Interpretation of Statutes, 10th Edition, p.
68. The principle laid down by their Lordships of the Supreme Court in The Chairman, East Pakistan Railway itoard v. Abdul Majld Sardar (1) and reiterated in Lahore Improvement Trust v. Custodian of Evacuee Property (2) is attracted to this case. It was observed that : "Acts performed and orders made by public authorities deserve due regard by Courts and every possible explanation for their validity should be explored and the whole field of powers in pursuance to which the public authorities act or perform their functions examined and only then if it is found that the act done, order made or proceeding undertaken is without lawful authority should the Courts declare them to be without lawful authority."
In these circumstances even if I had come to the conclusion that the constitution of the Central Board of Revenue was necessary under G. G.
0. 20 I would construe the notification about the first appointment of a member, Board of Revenue in Pakistan w,e,f, 15-8-1947 as a notification not only of appointment but also of constitution. The dictionary meaning of the word 'constitute' is not only to establish, to form or make up but also to appoint. See Chambers Twentieth Century Dictionary. To constitute and to appoint are therefore synonymous terms. Appointment of one member of the Central Board of Revenue is a constitution of a one member Board.
25. The other point that no member of the Central Board of Revenue in Pakistan has been or can be treated to have been appointed by the competent authority i,e, the Central Government, cannot be allowed to be taken since this point was neither raised before the Income-tax Authorities nor before the Special Judge nor in the writ petition. This objection is also belated. I agree with the argument of Mr. Ilyas Khan that this point raise a question in the nature of quo warranto even in regard to existing member who would be necessary parties to this petition. It falls within sub- clause (ii of clause (b) of sub-Article (1) of Article 199 which authorises the High Court to require a person within its territorial jurisdiction holding or purportion to hold a public office to show under what authority of law he claims to hold that office. These words clearly make the person holding office a necessary party to the writ petition and in the absence of such party the petition cannot be treated to be properly constituted. The impleading of Central Board of Revenue through its Chairman cannot cure this defect.
26. This objection is without force on merits too since no effort has been made to prove that Mr. Sherer or the other members of the Central Board of Revenue have not been appointed by the Central Government. There is a presumption under section 114 of the Evidence Act that official acts are regularly performed. The onus of rebutting this presumption and of proving otherwise is on the petitioner but he made no effort to discharge it. His learned counsel laid stress only on the point that section 17 of the Government of India Act and its corresponding provisions in the other success siven Constitutions of Pakistan which provided that all executive actions of the Central Government or Federal Government shall be expressed to be taken in the name of the Governor-General or the President as the case may be, are mandatory. The emphasis of the learned counsel on the provisions of section 17 of the Government of India Act is misconceived. I may repeat that the petitioner could not establish that the appointment has not been made according to the rules of Business framed under the Government of India Act as then existing. In these circumstances, the authorities relied
(1) P L, D 1966 SC 725 (2) PLD 1971 SC 811 upon for the proposition that if something is required to be done in a particular manner, say, by Notification, it ought to be done in that manner, are not applicable. It is now settled that the provisions of section 17(1) of The Government of India Act, 1935 are directory. Where an order emanates from the Central Government or is proved to have emanated from the Central Government, the mere fact that it was not expressed to be in the name of the Governor-General did not invalidate it, since there was no express provision in subsection (1) of section 17 declaring such order to be invalid. See Khalid Waheed and another v. Crown (1). In this case the sanction for prosecution given by the Central Government under section 5(5), Pakistan Criminal Law Amendment Act XIX of 1948 was not expressed to be given in the name of the Governor-General. It was held after discussing the relevant case-law that the sanction was not thereby invalidated.
Reference was made to a decision of a Division Bench of the Lahore High Court in Crown v. Abdul Rashid (Crl. Appeal No, 51/1955) in which a similar view was taken about interpretation of section 17(1). Reference was also made to State of Bombay v. Parshatum Jog Naig (2). A number of other cases were also referred to. A similar view was taken in Khondkar All Afzal v. Pakistan (3) by a Division Bench of the High Court of West Pakistan while interpreting Article 41(2) of the Constitution of 1956 which was similarly worded as section 17(1).
27. Mr. Javed Hashmi argued on the analogy of section 175(3) of the Government of India Act that the provision of section 17(1) should be treated as mandatory. There is a concensus of opinion now that the provisions of that section and corresponding provisions of the later Constitutions were also directory. The Province of West Pakistan v. Sindh Purchasing Board (4), Pakistan v. Amin Agencies Limited (5), Morris Jacob & Co. v. Pakistan (6). Azam Khan v. State of Pakistan (7). K. i11. Sana v.
Government of West Pakistan (8), Province of West Pakistan v. Mistri & Company. The authorities relied upon by the learned counsel for the petitioner are either inapplicable or lay down a rule which is dissented from in the above authorities, This point is therefore without force.
28. The next point raised by the learned counsel for the petitioner is that the order of approval of prosecution of the petitioner being signed by the Secretary (Taxes), Central Board of Revenue, is not a legally authenticated order and should be deemed to be non-existent. He referred to rule 3 of the Central Board of Revenue Rules, 1924 which provided that "the orders and decisions of the Board may be issued or notified over the signatures of a Member of the Board." He also relied upon the provision of rule 4 of the Central Board of Revenue Rules, 1.967, sub-rule (1) of which is to the following effect:- "the orders and decisions of the Board may be issued or notified over the signature of a Member or the Secretary."
' He argued that the term 'Secretary' in these Rules has been defined as a person appointed by the Central Government to perform the functions
(1) PLD 1956 Lah. 541 (3) PLD 1959 Kar. 105 (5) PLD 1962 Kar. 467 (7) PLD 1957 Kar. 892
(2) AIR 1952 SC 317 (4) PLD 1969 Kar. 653 (6) PLD 1968 Kar. 580 (8) PLD 1962 Lab. 509 of Secretary to the Board and since the Secretary (Taxes) is not a person appointed by the Central Government, he has no authority to issue or notify under his signatures the orders and decisions of the Board. He relied upon I. T. O. v. Nasim Akbar (1). It was held in that case that the order transferring a case from ordinary jurisdiction of the I. T.
0. To the jurisdiction of I. T.
0. (Invest.) was without lawful authority, since it was signed neither by the Member, Board of Revenue nor by a Secretary of the Board, but was signed by a Section Officer.
29. The learned counsel for the respondents did not contest the proposition that the Secretary (Invest.) was not a Secretary appointed by the Central Government to perform the functions of Secretary to the Board-He, however, relied upon the other portion of the definition of 'Secretary', which defines this term as including any other officer of the Board authorised' by the Central Government to perform all or any of the functions of the Secretary. He also relied upon the following Notification: "In exercise of the powers conferred by rule 2(d) of the Central Board of Revenue Rules, 1967, the Central Government is pleased to authorise all First Secretaries, Officers on Special Duty, and Second Secretaries of the Central Board of Revenue to perform all the functions of Secretary to the Board," ' and stated that the Secretary (Taxes) is one of those officers who has been-authorised by this Notification to perform the functions of the Secretary to the Board. The accuracy of this factual statement was not challenged by the learned counsel for the petitioner. In these circumstances, there is no doubt that the Secretary (Taxes) having been authorised to perform all the functions of the Secretary to the Board was a Secretary within the meaning of Central Board of Revenue Rules, 1967. The objection raised by the learned counsel is without substance.
30. Another point argued by the learned counsel for the petitioner is that the prosecution of the petitioner is in conflict with the provisions of Article 13 of the present Constitution which provides that `no person shall be prosecuted or punished more than once for the same offence'. He urged that the petitioner is confronted with a double jeopardy since on the one hand he has received a notice for imposition of penalty under section 28(1) and on the other hand he is being criminally prosecuted.
31. Mr. Ilyas Khan argued that this point does not arise in the present case since no action has been taken under section 28(1) of the Income-tax-Act after the issuance of notice.
32. In reply to this Mr. Javed Hashmi contended that the bar of' Article 13 is not only against punishment but is also against mere prosecution and the issuance of notice under section 28(1) of the Income-tax Act would bar the criminal prosecution. In order to establish that the provisions of section 28(1) are also penal provisions, he referred to the use of the word "penalty" in that section. It is provided there that an Income-tax Officer may direct that the person under notice shall pay by way of penalty the amount described in that subsection. He referred to State v. Muhammad Akbar (2), where the word "penalty" under section 137, P. P. C. Was Interpreted as meaning 'fine'. He also referred to Commissioner of Income-lax, Ahmedabad v. Gokuldas Harivallabhdas (3) and several other authorities
(1) PLD 1966 SC 775 (2) PLD 1962 Lah, 1
(3) (1958) 34 I T R 98 (Bom). ' in support of the proposition that the penalty proceedings under section 28(1) are criminal in the their very nature. He also made reference to Maney Co. v. Commissioner of Income-tax, Kerala (1), where a guide line is given for dealing with the cases under section 28(1). This is to the effect that the degree of proof must be that of a criminal prosecution. Lastly the learned counsel argued in this connection that analogous provisions of Article 20(2) of the Indian Constitution being different from the provisions of Article 13 of our Constitution, the Indian case-law cannot have any persuasive value for interpreting these provisions.
33. The provisions of Article 13 of the Constitution are slightly different in letter from the provisions of Article 20(2) of the Constitution of India. Article 20(2) of the Indian Constitution provides t- " Mat no person shall be prosecuted and punished for the same offence more than once."
' Bar in that Article is against duplicate punishment only and not against duplicate prosecution. In order to achieve this result the words "prosecuted" and "punished" have been conjunctively used.
The language of Article 13 of our Constitution is slightly different. It provides :- "that no person shall be 'prosecuted or punished' for the same offence more than once."
' The argument of the learned counsel for the petitioner is that the two worth "prosecuted" and "punished" have been used disjunctively in the Constitution of Pakistan and as such the bar is not only against duplicate punishment but also against double prosecution. The proceedings before the Income-tax Act initiated by a notice under section 28(1), according to the learned counsel amounts to a prosecution.
34. Despite the difference in the language of the provisions of Article 20(2) of the Indian Constitution and Article 13 of our Constitution the object of both the provisions is to ensure against double jeopardy. They give constitutional recognition as stated by the Supreme Court of India in Maqbool Hussain v. State of Bombay (2) to the ancient maxim 'nemo debet puniri pro uno delicto' that is to say, that no one ought to be twice punished for one offence or as it is sometimes called 'pro eadem causa', i,e, for the same cause. The roots of the principle are to be found in the well- established rule of the common law of England 'that where a person has been convicted for an offence by a Court of competent jurisdiction the conviction is a bar to all further criminal proceedings for the same offence' (per Charles, J. In Rag v. Malies (3). Its prototype is contained in the Fifth Amendment of the United States Constitution which among other things, provides: 'nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.'
' The Indian Constitution reiterates only the principle of 'autre fois convict' which is also embodied in section 26 of the General Clauses Act which is as follows:- "Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and
(1) (1963) 47 I T R 434 (2) AIR 1953 SC 325
(3) (1890) 24 Q B D 423 ' punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."
' There Is yet another statutory provision in section 403 of the Code of Criminal Procedure which saves an offender from being tried again for the same offence or on the same facts for any other offence if he has been once acquitted or convicted. This section is wider than the above provision in the Indian Constitution since they embody not only the principle of autrefois convict but also of autrefois acquit.
35. Article 13 of the Constitution of Pakistan appears to be wider in scope than its prototype in the Indian Constitution. Thus while it is essential for the applicability o' Article 20(2) of the Constitution of India that there must have been a prosecution and the accused must have been punished at such prosecution, all that is necessary under Article 13 of our Constitution is that the accused must either have been prosecuted or punished. The main question therefore is what meanings ought to be given to the word 'prosecution'.
36. The word 'prosecution' has a definite meaning and significance in the administration of criminal justice. It means a prosecution in respect of an offence before a Court of law or a tribunal required by law to decide the matters in controversy judicially on evidence of oath which it must have been authorised by law to administer in the manner or according to the procedure fixed for the trial.
Maqbool Husain v. State of Bombay O. It was held in this case that confiscation under section 167 of the Sea Customs Act does not involve a "prosecution" and hence criminal prosecution of the person from whose possession the property was confiscated is not barred. The Supreme Court of Pakistan in Adam v. Collector of Customs, Karachi (2) considered the question of double jeopardy in relation to the proceedings of adjudication of confiscation and penalties taken by the Customs Authorities under the Sea Customs Act in regard to seizure of contraband goods. It was held that Sea Customs Authorities are not a judicial authority in the strict sense of that term nor can their verdict of confiscation of the goods be regarded as a punishment by the Court after regular trial for the purpose of supporting a plea of double jeopardy. It was further observed:- "it is quite clear that the adjudication proceedings for the confiscation of the goods under the Act neither involve a criminal prosecution nor a punishment for an offence. No trial of the offender takes place for any offence nor is any punishment awarded to the offender."
The words underlined by me clearly show that in the view taken by their Lordships, of the Supreme Court, the proceedings under the Customs Act before the Customs ' Authorities for imposition of penalty or confiscation of goods do not amount to a criminal prosecution. On a parity of reasoning it must be held that the proceedings under section 28(1) of the Income-tax Act do no amount to either prosecution or to punishment. The proceedings of criminal prosecution as well as under section 28(t) of the Income-tax Act can therefor be taken concurrently. The language of Article 13 particularly its clause (b) that no person shall, when accused of an offence, be compelled to be a witness against himself indicates that the Article deals with a prosecution as explained above.
Breaches have now been made by legislation in the old age principle of administration of criminal justice that an accused cannot be given oath and cannot appear as a witness in his own trail. This principle was never
(1) AIR 1953 SC 325 (2) PLD 1969 SC 446 [Here in Italics] applied to proceedings other than those of trial of offenders before a criminal Court or tribunal as described above. Clause (b) of Article 13 obviously is applicable only to those cases where a departure is made from the above principle and some enactment allows the appearance of accused person as a witness in his defence. It cannot be held to be applicable to cases where there has never been a bar against appearance of a party as his own witness. There is no bar against the appearance of an assse ssee proceeded against under section 28(7) of the Income-tax Act. These proceedings therefore do not amount to a prosecution.
37. Assuming for the sake of argument that an action taken under section 28(1) is a prosecution, I would agree with the argument of Mr. Ilyas Khan that this objection cannot be taken by the petitioner in the present prosecution since no action under section 28(1) has so far been taken against him. It appears clear to me that the bar in Article 13 is against a prosecution where a person has already been prosecuted. It is not against prosecution of a person against whom only a prosecution was initiated which remained g inchoate. The word 'prosecuted' must mean not only that a prosecution was initiated or started but also that it must have reached the culmination stage resulting in either acquittal or conviction. What is contemplated in Article 13 is a complete prosecution. Viewed in this light it will be clear that Article 13 embodies not only the principle of autrefois convict but also the principle of autre fois acquit. The objection raised by the petitioner on the basis of this fundamental right cannot be raised in the circumstances of this case.
38. The learned counsel then relied upon the equality clause in Article 25 of the Constitution which provides that- "all citizens are equal before law, and are entitled to equal protection by law."
' He argued that section 28 provides for one type of prosecution before the I. T.
0. While section 54-A deals with other type of prosecution before the Special Judge. No guidelines, however, have been laid down as to which case may be dealt with under one provision and which one may be dealt with under other provision. This objection is also without force in view of what has been stated in the earlier paragraphs of this judgment.
39. Lastly the learned counsel argued that since after the filing of the complaint the petitioner's case has already been transferred to Lyalipur, the complaint as pending now will not be considered to be a complaint filed by an Income-tax Officer who is competent to make assessm ent under this Act in the case to which the offence is alleged to have been committed. This objection is without substance in view of the definition of the word 'case' which I have already discussed. Moreover, the transfer of the case from one Income-tax Officer to another does not invalidate the complaint if once it is filed by competent Income-tax Officer. I find no substance in either of these points raised by the learned counsel for the petitioners and dismiss all the petitions with costs.