MIAN SHAKIRULLAH JAN, J.---The petitioner, who is Income Tax Assessee, felt aggrieved originally of a notice, dated the 27th March, 1993, informing him with regard to the selection of his case for total audit under para. 4(ii) of the Self-Assessment Scheme for the Assessment Year, 1992-93 and subsequently by the orders of the Income Tax Authorities, approached this Court through the present writ petition.
2. The brief facts of the case are that the petitioner runs a hospital and being an Income Tax Assessee, filed his return of income for the assessment year, 1992-93 at not income of Rs,50.,000 and paid Income Tax at Rs,2,300 under the Self-Assessment Scheme vide Circular No,16 of 1992 (Income-Tax). The petitioner, as stated above, was informed through a Letter No,96367 dated 27- 3-1993 by the Income-tax Officer, Dera Ismail Khan Circle. D.I. Khan that his case has been selected for total audit and in consequence of which proceedings were initiated by the Assistant Commissioner of Income-tax, Circle-16, D.I. Khan (Respondent 6) and the assessment was framed ex parte under section 63 of the Income Tax Ordinance, 1979 (hereinafter referred to as the Ordinance). The assessm ent so framed ex parte under section 63 of the Ordinance reads as under:--- "Income is computed as under...
Gross receipts are taken from all heads discussed above including services rendered by the four doctors, on estimate..................... Rs,3,00,000 Less expenses claimed at Rs.1,21,200 but restricted to Rs,1,20,000......................Rs.1,20,000 Balance net income .................. Rs,1,80,000 Assessed as per IT-30 Issue D.N.C. Dated 23-1-1994."
The petitioner challenged the said order of assessment through an appeal before the Appellate Additional Commissioner of Income-tax, Peshawar Range (respondent No,5) who passed the following order:--- "Under the circumstances and in the absence of any clue regarding the status claimed on the face of the return filed for the year under appeal, it is considered appropriate to set aside the assessm ent with the directions that while making fresh assessment appellant's application dated 25-4-1993 should be given full consideration and The petitioner instead of facing the proceedings before the forum concerned approach this Court through its Constitutional jurisdiction by challenging the order/action of the respondents.
3. The emphasis of the learned counsel for the petitioner was mainly on the ground that, according to Para. 4(ii) of Circular No,16 of 1992 (Income-tax), once the return had been filed by the assessee under the Self-Assessm ent Scheme, then his case could not be selected for total audit unless the authorities having a definite information based on material evidence as is the requirement of the said para. But in the instant case, such a material and definite information was lacking and the selection of the petitioner for total audit was unwarranted and without jurisdiction and, he was of the view that, in such like situation the Constitutional jurisdiction of this Court can be invoked.
4. For the sake of convenience, the relevant para. 4(ii) of Circular No,16 of 1992 (Income-Tax) is reproduced below:--- "Circular No,16 of 1992 (Income-Tax). Selection of Cases for Audit.
From amongst those qualifying for the Self-Assessment Scheme returns may be selected for audit,
(i) through computer....
(ii) with the approval of Regional Commissioner of Income-tax where gross understatement of income is suspected on the basis of definite information based on material evidence."
5. With regard to competency of the writ petition, in view of availability of other adequate remedies under the Statute, the learned counsel for the petitioner has relied on: (i) Canon Products Limited v.
Income-Tax Officer, Companies Circle, Karachi and 2 others (1985 PTD 549) (Karachi High Court),
(ii) M/s. Spices International v. Regional Commissioner of Income-tax, Southern Region, Karachi and another (1993 PTD 1007) (Karachi High Court), (iii) Messrs Muhammadi Oil Trading Co. Through Partner, Karachi v. Regional Commissioner of Income-tax, Southern Region, Karachi and another (1994 PTD 494) (Karachi High Court) and (iv) Messrs Kamran Industries v. The Collector of Customs (Exports), Customs House, Karachi and 4 others (PLD 1996 Karachi 68).
6. On the other hand, the learned counsel for the respondents has vehemently argued that other adequate remedies were available to the petitioner under the Statute in the shape of appeal/revision and reference to the High Court and in such circumstances a recourse to the High Court in writ jurisdiction is unwarranted particularly when he has made a recourse to the forum of appellate authority provided under the Statute and in this respect he relied upon: (i) Commissioner of Income Tax, Companies-II and another PLD 1992 SC 847, (ii) The Commissioner of Income Tax etc., v. M/s. N.V. Philip's Gloeilam-penfabriaken PLD 1993 SC 434 = 1993 PTD 865 (iii) Adamjee Insurance Company Ltd. v. Pakistan through the Secretary to Government of Pakistan in the Ministry of Finance, Islamabad etc., 1993 SCMR 1798 (iv) Income-tax Officer and another v. M/s. Chapple Builders (1993 SCMR 1108), (v) M/s. Grays of Cambridge (Pak) Limited, Sialkot v. The Deputy Commissioner of Income-tax, Circle-01, Sialkot and another (Civil Petitions Nos.1229 and 1230-L of 1995 decided on 18-3-1996), (vi) Messrs Sameer Electronics v. Assistant Commissioner of Income- tax, Circle-10, Lahore (1996 PTD 36) (Lahore High Court) and (vii) Writ Petition No,372 of 1993 (M) decided on 12-10-1993) (Peshawar High Court).
7. While examining the above-quoted judgments, it seems that the preponderance and the recent ;rend of the judgments of the superior Courts favouring the respondents on the view point i,e,, that in the presence of statutory remedy under the Income Tax Ordinance approach to the High Court through a writ petition has been disapproved. In the case of Adamjee Insurance Company Ltd. 1993 SCMR 1798 cited above their Lordships of the Supreme Court observed as under:--- But where a notice under section 65, culminates into an assessment order, which can be assailed through an appeal, but no appeal is filed and the assessee approaches the High Court, very strong reasons are needed to allow him to by-pass that remedy.
10. In Muhammad Arif Dar v. Income-tax Officer PLD 1989 SC 109 this Court upheld the High Court's refusal to interfere in exercise of writ jurisdiction with re-assessment order passed in pursuance of notice under section 65 and maintained:--- One of the conditions for grant of relief in writ jurisdiction of the High Court is that the petitioner before it should not have any alternative adequate remedy. In this case, a remedy by way of appeal, as mentioned in the impugned order, was such remedy. Therefore, it is correct that no relief could be granted to the petitioner under Article 199 of the Constitution.'
Similar was the view expressed in Commissioner of Income-tax v. Hamdard Dawakhana (Waqf)
PLD 1992 SC 847, at p.861-862 re-produced below:--- , Before parting with the judgment we may observe that in cases where any party resorts to a statutory remedy against an order he cannot abandon or by-pass it without any valid and reasonable cause and file Constitution petition challenging the same order. Such practice, in cases where statute provides alternate and efficacious remedy up to High Court, cannot be approved or encouraged. In a recent judgment of this Court in Civil Appeal 79-K of 1991, one (Ajmal Mian, J.) in similar situation observed as follows:- We may now revert to the question, whether the appellant was justified to file above Constitution petition against the order of the Tribunal instead of invoking section 136 of the Ordinance for making a reference to the High Court. According to Mr. Rehm Naqvi, a reference under the above provision would not have been adequate and efficacious remedy as it would have taken years before it could have been heard. The same could be true for a Constitution petition.'
The tendency to by-pass the remedy provided under the relevant statute and to press into service Constitutional jurisdiction of the High Court has developed lately, which is to be. Discouraged.
However, in certain cases invoking of Constitutional jurisdiction of the High Court instead of availing of remedy provided for under the relevant statute may be justified, for example when the impugned order/action is palpably without jurisdiction and/or mala fide. To force an aggrieved person in such a case to approach the forum provided under the relevant statute may not be just and proper.'
In the present case, the appellant had opted to avail to the hierarchy of forums provided for under the Ordinance up to the stage of filing of appeal before the Tribunal and, therefore, it would have been proper on the part of the appellant to have invoked section 136 of the Ordinance for making a reference to the High Court instead of filing a Constitutional petition. In our view, once a party opts to invoke the remedies provided for under the relevant statute, he cannot at his sweet will switch over to Constitutional jurisdiction of the High Court in the mid of the proceeding in the absence of any compelling and justifiable reason.'
For all these reasons, we hold that the discretion exercised by the High Court in dismissing the writ petition on the rectitude of availability of adequate alternate remedy, is well-grounded and does not call for interference. There is no merit in these appeals, which are dismissed, leaving the parties to bear their own costs."
8. In the case of Income-tax Officer and another 1993 SCMR 1108 cited above the' Honourable Judges in the Supreme Court held the case of the assessee good on merits but the approach to the High Court through a writ jurisdiction was disapproved without exhausting the statutory remedy and it was observed as under:- "When after considerable argument's we had already reached the ID above conclusion and had also announced it and the consequential dismissal of the appeals was yet to be announced, the learned counsel for the appellants brought to our notice that the respondent in this case approached the High Court in its writ jurisdiction without seeking and exhausting the statutory remedies. In several of the very recent judgments we have not approved in such situation the interference by the High Court in tax matters, when the normal course being adopted by almost all the High Courts in matters other than tax, rule of alternate remedy is being followed."
9. As a sequel to the above discussion, this writ petition has got no force and is dismissed accordingly. The parties are, however, left to bear their own costs.