1. SARDAR SAID MUHAMMAD KHAN, J.---The brief facts giving rise to the present appeal are that 26 writ petitions were filed by the respondents, herein, challenging the validity of the notice issued under section 65 of the Income Tax Ordinance, 1979 (hereinafter to be called as the Ordinance).
2. The case of the respondents was that they were old assessees and their income regarding the relevant period, as detailed in the writ petition, had been duly assessed, but despite that the appellant No,3 appointed the appellant No,1 to conduct the survey of the income of the respondents vide its order dated 26-61986. It was further the case of the respondents that as the appellant No,1 was Deputy Collector Excise and Taxation and not the Income Tax Officer at the relevant time, he could not be appointed for making the survey; because he was not subordinate to appellants Nos.2 and 3 as envisaged in section 146 of the Ordinance. It was further contended by the respondents that there being no definite information is stipulated under subsection 2 of section 65 of the Ordinance, proceedings for the additional assessment could not be initiated against the respondents. The High Court accepted the writ petitions on the grounds that as the appellant No,1, who conducted the survey as Income Tax Officer of the income of the respondents and subsequently passed fresh orders in some of the cases in question was performing the duties as Deputy Collector Excise and Taxation, and not as an Income Tax Officer at the relevant time, he was not subordinate to the appellants Nos.2 and 3. Therefore, he could not be assigned the function of making the survey of the income of the respondents as envisaged under sections 145 and 146 of the Ordinance.
3. Leave to appeal was granted by this Court to consider the following points:- (i)Whether petitioner No,1 was competent to undertake survey as all Officers of Income Tax Department are basically Income Tax Officers as such petitioner No,1 was competent to exercise the jurisdiction.
4. (ii)Whether the learned Judge in the High Court passed the impugned order without considering the survey reports prepared by the petitioner No,1 as such the order is unsustainable.
5. We have heard the arguments and gone through the file. Mr. Basharat Ahmad Shaikh, the learned counsel for the appellants, has argued that the High Court has committed an error while arriving at the conclusion that the appellant No,1, who was Deputy Collector Taxation at the relevant time was not subordinate to the appellant No,3 and as such he could be assigned to conduct the survey of the income of the respondents and subsequently pass the fresh orders of the assessment.
6. Elaborating his argument he has submitted that before the promulgation of the Interim Constitution Act, 1974, the employees of the Department of the Income Tax were also invested with the powers to perform the functions of the Excise and Taxation Department. This position continues unchanged even uptil now. He has contended that the appellant No,1 was not only appointed as an Officer in the Excise and Taxation Department but he was also appointed as an Officer in the Income Tax Department. The learned counsel has further submitted that after the promulgation of the Interim Constitution Act, 1974, the Income Tax Department came under the administrative control of the Azad Jammu and Kashmir Council and formally the administrative control was handed-over to the Council in year 1979, but even then an arrangement was made between the Azad Jammu and Kashmir Government and the Azad Jammu and Kashmir Council, whereby the functionaries of the Income Tax Department were to continue to perform their duties as Excise and Taxation Officer till a separate department is established by the Government. The learned counsel referred the relevant Notification regarding the aforesaid arrangement.
7. On the other hand, the learned counsel for the respondents, Ch. Muhammad Afzal has contended that at the relevant time when the appellant No,1 was appointed to carry out the survey of the income of the respondents he was not posted as Income Tax Officer, but was posted only as Deputy Collector Excise and Taxation. Thus, according to the learned counsel, it cannot be said that at the relevant time the appellant No,1 was subordinate to appellant No,3 as an employee of the Income Tax Department. However, it is not controverted by the learned counsel for the respondents that the appellant No,1, before his appointment for the purpose of conducting the survey, had been acting as Income Tax Officer at various times.
8. The perusal of the relevant order by which the appellant No,1 was appointed to survey the income of the respondents shows that at the time of the aforesaid assignment he was holding his appointment as Deputy Director Excise and Taxation and Income Tax Officer, yet was posted as Deputy Director Excise and Taxation. For our own satisfaction we asked the learned counsel for the appellants to produce the relevant record as to whether in fact the functions of the Income Tax Department and that of the Excise Department were performed by the same functionaries and their appointments were in dual capacities and thus the appellant No,1 was appointed not only as an employee of the Excise and Taxation Department but also as an employee of the Income Tax Department. The learned counsel has produced the record; which shows that on 26-9-1973 when the appellant was serving as Inspector Income Tax, he was promoted as Assistant Collector/Assistant Income Tax Officer. On 20th August, 1978, the appellant No,1 was again promoted in Grade-17 in the capacity as Deputy Collector/Income Tax Officer. Subsequently, he was posted at various times in the aforesaid dual capacities, When the Income Tax Department was formally handed-over to the Azad Jammu and Kashmir Council, the appellant No,1 was still to perform his duties as Deputy Director Taxation as an employee of the Azad Jammu and Kashmir Government alongwith his duties as Income Tax Officer according to the aforesaid arrangement. It is evident that the basic appointment of the appellant No,1 was in dual capacities as an employee of the Income Tax Department and as a functionary of the Excise and Taxation Department. The mere fact that at the relevant time when the appellant No,1 was assigned the functions for making survey of the income of the respondents was not posted as Income Tax Officer would not affect his appointment as a functionary of the Income Tax Department, especially so when his services had been placed at the disposal of the Azad Jammu and Kashmir Council as an employee of the Income Tax Department. Thus, the findings of the High Court that as that appellant No,1 was not a subordinate to appellant No,3 at the time of the assignment of making the aforesaid survey are erroneous and are not sustainable.
9. The learned counsel has also argued that as the appointment of the appellant No,1 was made by the President, the same is invalid because under the provisions of the Income Tax Act, 1922, such appointment could be made only by the Central Board of Revenue. Irrespective of the merits of arguments, the point was not raised in the High Court nor is the same mentioned in the concise statement filed by the respondents. Therefore, the same cannot be permitted to raise at this stage.
10. ' Next, it has also been contended by the learned counsel for the appellants that as the respondents had adequate remedy by way of an appeal to the Income Tax Tribunal etc. the writ petitions were not competent. In reply it has been argued that so appeal has been provided against an order or the decision of Income Tax Commissioner pertaining to the matter of jurisdiction as envisaged under section 5 of the Ordinance, therefore, the writ petitions were competent. The question of jurisdiction under section 5 of the Ordinance is to be determined by the Income Tax Commissioner. No appeal is provided against the said order. Thus, if the other conditions for seeking the remedy by way of writ are satisfied the writ would be competent. The learned counsel for the respondents has argued that the Income Tax Commissioner disposed of the matter regarding the jurisdiction of appellant No,1 without hearing the respondent as such the order was not sustainable. Irrespective of the fact as to whether the Commissioner was bound to hear the respondents before the adjudication of the question of jurisdiction or not, the fact remains that the grounds on which the respondents assailed the order of the appointment of appellant No,1 to conduct survey, as stated earlier has not found favour with us. The contention of the learned counsel for the respondents that the impugned order was rightly passed, is not sustainable merely on the ground that the respondents were not heard by the Income Tax Commissioner before the disposal of their application regarding the question of jurisdiction of the appellant No, 1 . As the basic plank on which the objection of the respondents rested does not support the contention of the respondents, the impugned order cannot be set at naught on the principle of the audi al term partem.
11. Next, it has been contended by the learned counsel for the appellant that as under section 62(2) of the Ordinance the proceedings for additional assessment could not be initiated without having a definite information or without first obtaining the approval of the Inspecting Assistant Commissioner , the proceedings taken by the appellant No,1 being violative of law are without jurisdiction. Section 65(2) of the Ordinance envisages that either there must be definite information or the previous sanction of the Inspecting Assistant' Commissioner for initiating the proceedings for making additional assessm ent. It has not been specifically alleged in the writ petition that previous approval of the Inspecting Assistant Commissioner was not obtained. However, the learned counsel for the respondents has taken the stand in this Court that although there is approval by the aforesaid authority on the record, but the same was forged after the decisions of the High Court in the instant cases. He has tried to substantiate his contention by urging that no date has been mentioned showing as to when the said approvals were given. The learned counsel has also contended that as he has alleged in the writ petition that the relevant order was in violation of section 65, it should be interpreted to mean that he has also alleged the absence of the approval.
12. It may be observed here that the general allegation of violation of section 65 of the Ordinance made by the respondents in their writ petitions would not necessarily imply that they took the said stand, especially so when despite alleging the violation of section 65 respondents have specifically mentioned in their writ petitions that as not definite information was available for proceedings under section 65 of the Ordinance, the relevant order was without jurisdiction. It may be stated here that it is settled law that the question of fact or a mixed question of law and fact should be specifically pleaded by the parties in civil matters or for that matter in the jurisdiction. The mere vague, ambiguous allegation of general nature which do not make the opposite party alive to the contention raised, cannot be interpreted to mean that a party in fact has alleged the fact which renders a particular act as invalid. Thus, assuming for the sake of argument that there was no specific information available as envisaged under section 65(2) of the Ordinance, the proceedings cannot be invalidated if there is an approval of the Inspecting Assistant Commissioner. The contention of the respondents that the approval was obtained after the decision of the High Court because there was no date on the said order of approval cannot be upheld, especially so when the point of absence of approval has not been taken specifically in the High Court and the other side had no opportunity to meet the same. So far as the question of absence of the definite information' is concerned it may be observed here that under section 146 of the Ordinance a survey was conducted by the appellant No,1 even according to the case of the respondents, as is evident from the contents of their writ petitions. It is also on the record that according to the respondents their statements were recorded during the course of survey. The case of the appellants is that 'definite information' for initiating the additional assessment had come to their knowledge a result of survey conducted by the appellant No,1 Thus, the argument that there was no 'definite information available in the case for making additional assessment is not tenable and is hereby repelled.
13. The learned counsel for the respondents has referred to a case entitled Biswabhusan Naik v. The State of Orissa (AIR 1954 SC 359). The perusal of the aforesaid authority reveals that this was a case under the Prevention of Corruption Act, 1947, wherein the scope of section 5 of the said Act was determined. The aforesaid authority has no relevancy to the case in hand, as such it does not help the case of the appellants. It may be further observed here that the learned counsel has failed to cite any authority that it was necessary for the appellant No,1 to mention the source of information or particulars thereof in the notice issued to the respondents. Besides, whether there were some 'definite information' available with the Income Tax Authorities to initiate the proceedings under section 65 of the Income Tax Ordinance, is a question of fact and the same cannot be resolved in the writ jurisdiction. The proper forum to seek the relief on the basis of such grounds is by way of appeal to the appellate authority as envisaged under the provisions of the Ordinance and not by invoking the writ jurisdiction.
14. The learned counsel for the respondents has also contended that Inspecting Assistant Commissioner has no authority to appoint the appellant No,1 to carry out the survey in question and it was only the Commissioner who could have does so. There is no finding on this point by the High Court. There is no affidavit to the effect that the said point was pressed before the High Court and no finding was given thereon. It may be observed that the learned counsel has submitted that he has raised some other law points but no finding has been given on the same by the High Court.
15. Thus, he has filed cross-objections in this Court. If such was the case, the proper course for the learned counsel for the appellants was to file an appeal under the relevant rules and not to file cross-objections. It has been held by this Court that cross-objections are not envisaged under the Supreme Court Rules and as such the same are incompetent. A reference may be made to Sadia v. Abdul Khaliq (Civil Appeal No,10 of 1987, decided on 29-10-1988).
16. An application was submitted by the counsel for the respondents during course of arguments for summoning some record. In view of our findings on the relevant controversial points we do not feel the necessity for the summoning of the said record.
17. In the light of what has been stated above we accept the appeal, set aside the impugned judgment of the High Court. The cross-objections are also rejected as being incompetent. In the circumstances of the case we make no order as to the costs.