' The petitioner, in this Constitutional petition, has challenged notice, dated 1-4-1996, purportedly issued under section 65 of the Income Tax Ordinance, 1979. Case of the petitioner is, that Income- tax Return for assessm ent year 1993-94 was filed under Self-Assessment Scheme, framed under section 59 of the Income Tax Ordinance, 1979. Petitioner's case was selected for total audit through computer ballet and the Assistant Commissioner of Income-tax Circle-01, Zone-A, Lahore assessed income of the petitioner at the rate of Rs,326,916. Being aggrieved, petitioner challenged the order, dated 22-6-1994 of Deputy Commissioner of Income-tax Circle-01, Zone A Lahore in appeal before the Commissioner of Income-tax (Appeals) who set aside the assessment order on 31-3-1995 and remitted back the case to the Assessing Officer. During pendency of the appeal Assistant Commissioner Income-tax Circle-01 reopened the assessment on 22-6-1994 under section 65 of the Income-tax Ordinance. Later as a result of agreement between the parties petitioner's income was assessed at Rs,350,000.
2. On 9-3-1996 Assistant Commissioner Income-tax Circle-01, Zone A, Lahore, respondent No,2, issued show-cause notice to petitioner for again reopening the case under section 65 of the Ordinance On frivolous grounds. This notice has been challenged by the petitioner in the present Constitutional petition. Learned counsel for the petitioner submitted that the matter having once been settled through agreement, reopening of the case, by change of opinion will not be permissible. It is added that necessary sanction was not obtained from the competent Authority.
Learned counsel submitted that once the matter has been dealt with upto the level of appellate authority, and the matter has been resolved with the mutual consent, reopening of the case, on frivolous ground is not permissible.
3. Learned counsel for the respondents submitted that the legal objections as to the maintainability of the proceedings and also the jurisdiction of the authority can be raised before respondent No,2 who of-course will determine these questions in accordance with law, before taking up the case on merit.
4. From the facts noted supra, it is evident, that previously, the case of the petitioner was selected for detailed scrutiny and subsequent order was challenged in appeal, where the case was remanded. In post remand proceedings, a compromise took place and the issue was resolved on the basis of the agreement. The petitioner has again been served with -a notice with intention to reopen the case. Main grievance of the petitioner appears to be that the case cannot be reopened as the entire Material was before the authority concerned at the time when the matter was amicably resolved and that mere change of opinion would not furnish a ground for reopening of the case, unless some definite information's are claimed to have been acquired. It is also the case of the petitioner, that once the authority concerned as adjudicated upon the matter with conscious application of mind, the case cannot be reopened for causing unnecessary harassment.
5. From the position taken by learned counsel for the respondents, it is observed that the respondents are willing to consider the point of jurisdiction and other objection of the petitioner before initiating proceedings under section 65 of the Ordinance. The questions raised in this petition have not so far been dealt with or commented upon by the officer concerned in proper regular hearing or on assumption of jurisdiction under section 65 of the Income-tax Ordinance. The petitioner, will be well-advised, if the pleas, sought to be advanced in this petition are raised before the departmental forum in the first instance and also to pursue the normal channel of appeal/revision/reference to the higher authorities under the Ordinance. It is a settled rule, that the controversial issue requiring factual inquiries cannot be determined in summary jurisdiction. The petitioner shall, therefore, in the first instance raise objection to the jurisdiction and maintainability of the proceedings or issuance of notice under section 65 of Income-tax Ordinance, before respondent No,2, who will decide the same as a preliminary objection, after opportunity of hearing to the petitioner, in accordance with law and on its own merit. Respondent No,2 shall attend to the objections of the petitioner, on their own merit and shall render a decision which he deems in good faith to be bona fide and correct. If the petitioner is not satisfied with the decision on the preliminary objections, as to the jurisdiction and maintainability of proceedings under section 65 of the Ordinance, it can challenge the order before the higher forum, in the hierarchy of jurisdiction, under the Ordinance.
6. This petition is disposed of with the above observations and directions.