ORDER CH. IJAZ AHMAD, J.- The petitioner is Income Tax assessee and submitted return for Assessment Years 1993-94 and 1994-95 under self assessm ent scheme and the assessment was rightly be completed under Section 59(1) of the expiry of the scheme i.e. 30-6-1994 and 30-6-1995. Respondent' No. 1 issued show-case notice for taking action under Section 65 of the Income Tax Ordinance, 1979 for the re- opening of the case qua the aforesaid Assessment Years that respondent No. 5 has no jurisdiction to issue notice under Section 65 Income Tax Ordinance., 1979. The petitioner submitted representation before respondent No. 3, who decided against the petitioner on 27-1-1997.
Subsequently, the petitioner also filed another representation before respondent No. 3 which was also decided " against the petitioner. The petitioner was not satisfied with the action of respondent filed W.P. No. 1986/98 and challenged notice under Section 65 of Income Tax Ordinance, 1979 and order dated 12-10-1994 under Section 59(A) of I.T.O., 1979 on the ground that respondents have no authority to issue notice under Section 65, I.T. Ordinance as the assessment has already been completed in self assessm ent scheme and respondent has no authority to re-open the same on the well-' known principle of past and closed transaction. The earlier W.P. No. 1986/1998 was dismissed vide order dated 26-2-1998 in the following terms:- "In view of the facts hereinabove and the rule in the precedent cases noted supra, this writ petition is not maintainable as the same having been filed without availing adequate alternate remedy provided under the ' Income Tax Ordinance. Resultantly, Writ Petition No. 1986 of 1998 and Writ Petition No. 2534 of 1998 are dismissed."
Thereafter, petitioner filed revision under Section 138, I.T.O., 1979 before the Commissioner of Income Tax which was finally dismissed vide order dated 29-6-1998. On 13-6-1998 respondent No. 1 passed the assessm ent order against the petitioner on the basis of aforesaid notice under Section 65 of Income Tax Ordinance, 1979.
The petitioner being aggrieved filed an appeal against the aforesaid assessment order before the Additional Commissioner under Section 129 of. I.T.O. The petitioner also filed an application for revocation of order in revision under Section 138 of I.T.O, in respect of Assessment Years 1993-94, 1994-95, dated 29-6-1998 before the Commissioner Income Tax Zone which was also dismissed; hence this writ petition.
2. The petitioner's counsel contended that respondents have no authority to re-open the past and closed transaction under Section 65 of I.T.O., 1979, therefore, notice under Section 65 was without lawful authority and when the basic order is without lawful authority then the superstructure shall fall automatically on the ground. He relied upon the following judgments:.
(1993 SCM R 29); (1990 P.T.D. 889)
(1997 SCMR 1920); (1992 Tax Vol. 65) page 102 (1997 Tax V. 67 page 233) MLR 1993 SCI)
He further urged that by efflux of time under the provisions of, law the respondents have no authority to invoke Section 65 of I. T.O, as claim of the respondents has become time-barred. He further urged that Sections 65 and 59-A are not attracted and" final qua the parties by virtue of provisions of Section 59(A) of I. T.O., 1979. Therefore, action of the respondent is without lawful authority.
3. The learned Legal Advisor for respondents entered appearance on Court's call and stated that once the notice has been converted into assessment order, then the writ petition qua the notice is not maintainable on the well-known principle that notice merged in the assessment order. He further urged that petitioner has already filed appeal before the appellate forum against the assessm ent order and concealed the material facts from this Hon'ble Court, therefore, writ petition is not maintainable and the action of respondents is within time and in accordance with the provisions of Income Tax Ordinance. He relied upon the following judgments:- (1993 SCM R 1195); (1978 SCM R 367); and (1993 SCMR109).
4. I have given my anxious consideration to the contentions of the learned counsel for the parties, lt is better and appropriate to reproduce certain facts in chronological order to resolve the controversy between the parties which are as follows:-
(i) Judgment of this Court dated 26-2-1998 revealed that ' the petitioner made representation before respondent No. 1 which could not achieve positive result and the same was dismissed on the ground that the petitioner has invoked the alternate remedy;
(ii) Petitioner filed revision petition before the Commissioner under Section 138, which was dismissed on 29:6-1998;
(iii) Assessm ent Order was passed on 30-6-1998;
(iv) The petitioner filed appeal before the appellate forum under Section 129 of I.T.O, which is pending adjudication; and
(v) Petitioner filed rectification under Section 138 I.T.O, before the Commissioner which was dismissed.
The aforesaid facts revealed that the petitioner has filed revision before the Commissioner under Section 138, I.T.O, against the show-case notice under Section 65 of the Ordinance issued by the respondents and the earlier writ petition was dismissed the ground that the petitioner has filed representation before Commissioner Income Tax. The revision petition Under-Section 138 qua the notice under Section 65 was dismissed on 29-6- 1998 and respondent No. 1 has passed the final assessm ent order on 30-6-1998, therefore, proceedings qua the notice merged in the final assessm ent order. The petitioner has filed appeal before the competent forum which is pending adjudication, lt is settled principle of law that Court can take notice of subsequent events. I am fortified (1990 C.L.C. 1069), therefore, writ petition is not maintainable as the controversy between the parties is still pending adjudication before the appellate forum. I am also fortified by the judgment of Hon'ble Supreme Court Ch. Muhammad Ismail's case (P.L.D 1996 S.C. 246) and the relevant observation is as follows:- "If the litigant public is permitted to take all sorts of dispute to the High Court without first availing of other remedy available to them, under law, it will not only necessarily increase the work load of the High Court but would also defeat the provisions of law by which the said remedies have been made available. Such a spree on the part of litigant public would, have we may say so, amount to abuse of Constitutional jurisdiction which is to be exercised by the High Court in exceptional cases to provide justice which cannot be otherwise obtain by the aggrieved parties."
I also supported by the judgment of the Hon'ble Supreme Court 1993 PSC 559.
The petitioner did not challenge assessment order through this writ petition; the order passed by revisional authority under Section 138 of I.T.O, which relates to the proceedings initiated under Section 65 of I T.O. which automatically merged in the assessment order, therefore, without challenging the assessm ent order through this writ petition, the petitioner is not permitted to challenge revisional order on the well-known Maxim that a thing cannot be done directly he is not permitted to do in directly. I am fortified by the judgment of Hon'ble Supreme Court (P.L.D. 1967 S.C.
373). The contents of the writ petition revealed that the petitioner has concealed material facts from this Hon'ble Court qua the appeal filed by the petitioner before the appellate authority against assessm ent order, therefore, petitioner is not entitled to get any discretionary relief under Article 199 of the Constitution. I am not inclined to exercise discretion in favour of petitioner who concealed the material facts from this Hon'ble Supreme Court. I am fortified by the following judgments:- C.M. Malik's case (1990 C.L.C. 1783); Ronaq Ali's case (P.L.D. 1973 S.C. 326); Saif Ullah's case (P.L.D. 1989 S.C. 166); Rana Arshad's case (1998 SCM R 1462).
5. For what has been discussed above, this writ petition is dismissed in limine, as the petitioner did not approach this Court with clean hands as well as the petitioner has availed alternate remedy which is pending adjudication.