CH. IJAZ AHMAD, J. -- The brief facts out of which the present writ petition arises are that the petitioner submitted tis income tax returns for the years 1992-93 and 1993-94. The petitioner received, certain amounts from different parties as advance/loan allegedly through proper cross cheques which were duly deposited in the petitioner's bank account and then got the same encashed through its own cheques. The two assessment orders were passed ex parte against the petitioner by the Deputy Commissioner Income Tax regarding income tax returns in question. The petitioner being aggrieved by the assessment orders filed two appeals >before the Commissioner of Income Tax/Wealth Tax, Appeal tone, Gujranwala. The learned appellate authority dismissed he appeals. The petitioner being aggrieved filed revision petitions under Section 138 of the Income Tax Ordinance, 1979 before the Member Judicial Income Tax who upheld he assessment orders but he remanded the case to the Dy. Commissioner for fresh decision to the extent regarding addition under Section 12 (18) of the Income Tax Ordinance, 1979. On remand Deputy Commissioner passed two fresh assessm ent orders on 29.6.1998 regarding the Income Tax Return 1992-93 and granted relief to the extent of Rs. 5,50,000/- and balance claim was rejected whereas the assessment order regarding income tax return for the year 1993- 94 total claim of the petitioner was rejected. The petitioner being aggrieved by the aforesaid assessment orders filed two appeals before the Commissioner of Income Tax/Wealth Tax Appeal Zone, Gujranwala under Section 132 of the Income Tax Ordinance, 1979 who granted further relief to the petitioner amounting to Rs. 1,00,000/- qua the income tax return 1992-93 whereas he upheld the assessment order qua the Assessment Year 1993-94 on 17.2.1999. The petitioner being aggrieved filed revision petition under Section 138 of Income Tax Ordinance before the Member, Judicial who dismissed the same vide order dated 2.6.1999, hence the present writ petition.
2. The learned counsel of the petitioner contended the petitioner produced the receipts of the bank but the Tribunals below wrongly rejected the same. He further stated that assessment order was not passed by the Dy. Commissioner in time, therefore, petitioner did not produce the cross- cheques except the receipts. He further stated that on the same evidence the Tribunals below have granted benefit to the petitioner but rejected the claim of the petitioner on the same evidence without applying his mind. He further stated that petitioner is entitled to relief to genuine transaction on the basis of C.B.R. Circular No. 3 of 1992, dated 27th January, 1992 and Circular No. 12 of 1992, dated 19th May, 1992 but the Tribunals below rejected the claim without adverting to these circulars therefore, orders of the Tribunals below are mala fide and coram non judice.
3. The learned Legal Advisor of the respondents stated that aforesaid circulars were declared ultra vires of Section 12 (18) of the Income Tax Ordinance by the Income Tax Appellate Tribunal on 18th September, 1996 (1997 P.T.D. (Trib) 276). He further stated that Honourable Supreme Court has also declared such type of circulars ultra vires in Central Insurance Company's case (1993 P.T.D. 766).
He further stated that Tribunals below have given finding of fact against the petitioner. He further urged that the petitioner has alternate remedy to file appeal under Section 134 of the Ordinance before the Tribunal against the orders of the Commissioner Appeals Zone dated 17.2.1999 but the [Vol. V Amanullah Enterprises (Pvt.) Ltd. V. Member (Judl.) C.L.703 Direct Taxes, Revenue Division, Central Board of Revenue (Ch. Ijaz Ahmad, J) petitioner filed revision petition under Section 138 of the Income Tax Ordinance mala fidley.
4. I have give my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself, it is admitted fact that Tribunal which was comprising of two members, declared ultra vires the Circular No. 3 of 1992, dated 27.1.1992 and Circular No. 11 of 1992, dated 4.5.1992 issued by C.B.R, vide judgment dated 18th September, 1996 that is why the petitioner did not file appeal mala fidley before the Tribunal under Section 134 of the Income Tax Ordinance, it is also admitted fact that the aforesaid judgment of the Tribunal was not brought into the notice before the Member (Judicial) who exercised revisional power under Section 138 of the I. R.O, at the time of deciding the revision filed by the petitioner on 9.4.1997, therefore, revisional order dated 9.4.1997 is judgment per incuriam. it is also settled proposition of law that a Judge/Authority must wear all the laws of the country on the slave of his rope and failure of the counsel to properly advise him is not a complete excuse in the matter as the principle laid down by the Honourable Supreme Court in the following judgments:-
(1) PLD 1969 S.C. 278 Muhammad Sarwar's case.
(2) PLD 1992 S.C. 263 Mst. Salma Ifroze's case.
The Tribunal has already decided the controversy vide its judgment dated 18.9.1996 and the petitioner mala fidley did not avail the remedy under Section 134 of the Income Tax Ordinance, 1979, therefore, petitioner does not approach this Court with clean hands, it is settled proposition of law that he who seeks equity must come with clean hands as the principle laid down by the Honourable Supreme Court in Nawabzada Raunak AH's case (PLD 1970 S.C. 236). it is also admitted fact that all the Tribunals below have given concurrent finding of fact against the petitioner, therefore, writ petition is not maintainable as the principle laid down by the Honourable Supreme Court in the following judgments:-
(1) PLD 1981 S.C. 246.
(2) PLD 1981 S.C. 522.
(3) 1974 SCMR 530.
It is admitted proposition of law that this Court has no jurisdiction to substitute its own decision in place of the decision of the Tribunal below as the principle laid down by the Division Bench of this Court in Masaduq's case (PLD 1973 Lahore 600). Even otherwise revision petition before the Member (Judicial) is not maintainable as the law laid down by this Court in M/s. Venus Stationery Mart's case (KLR 1995 Tax and Customs Cases 40). Apart from this, the case of the petitioner also does not fall under Circular No. 3 of 1992, dated 27.1.1992 as the petitioner failed to produce cross cheques which is condition precedent. Similarly, his case does not fall under Circular No. 12 of 1992, dated 19.5.1992 as the petitioner also failed to fulfil the condition/precedent prescribed in this Circular, therefore, writ petition is not maintainable. I am fortified by the judgment of the Honourable Supreme Court (PLD 1971 SC 124). it is pertinent to mention here that unfattered power of C.B.R, to issue circular over and above the Ordinance creates chaos and unnecessary litigation that is why no uniformity and stability exist in the society which creates difficulty to the people of Pakistan as well as public functionaries. The Honourable Supreme Court laid down principle that C.B.R, has no jurisdiction to issue circulars in violation of the provisions of the Ordinance in Central Insurance Company's case (1993 P.T.D. 766). The judgment of the Honourable Supreme Court is binding on each and every organ of the State by virtue of Article 189 of the Constitution. The revisional authority has also exercised the power without adverting to the conditions prescribed in the section itself generously and the law laid down by the Honourable Superior Court which creates such type of situation i. e. Tribunal consisting of two members declared impugned circulars ultra vires of the Section 12 (8) on 18.9.1996.
In view of the above said discussion, there is no merit in this writ petition and the same is dismissed.