CH. IJAZ AHMAD, J.--(1). I intend to decide W.P. No. 10111 of 1999; W.P. No. 10112 of 1999; W.P. No. 10113 of 1999 and W.P. No. 10114 of 1999, by one consolidated judgment having similar facts and law.
2. The brief facts giving rise to these writ petitions are that the petitioner is assessee; submitted his income-tax return for the year 1993-94 which was not accepted by the Department and finally Tribunal accepted the appeal of the petitioner vide judgment, dated 2-6-1998. Similarly his appeal were accepted by the Commissioner, Income Tax regarding the assessment order qua the income-tax returns for the years 1995-96; 1996-97 and 1997-98 in favour of petitioner on 20-5-1999.
The Commissioner, Income Tax Appeals dismissed the appeal of the petitioner regarding the income tax return for the year 1998-99 on 20-5-1999. The respondent on the basis of the acceptance of appeal of the petitioner by the Tribunal on 25-6-1999, the Commissioner, Income Tax, Appeals on 20-5-1999 respondent has to refund Rs. 5,49,76,114 but the respondent instead of accepting the aforesaid order in letter and spirit mala fidley issued notice to the petitioner under section 65 of Income Tax Ordinance on 28-5-1999. The notice does not reveal at all regarding any new definite information received by the Income-tax Officer as is Pak Arab Fertilizers (Pvt) Ltd. Vs. Deputy C.I.T. CL. 223 {Ch. Ijaz Ahmad, J.} evident from the notice, dated 28-5-1999 which reveals escaped assessment and being under assessed.
2. Learned counsel for the petitioner stated that both the clauses are destructive of each other either the petitioner has escaped assessment or being under assessed. The notice does not contain any fresh material, therefore, Income-tax Officer has no jurist tion to re-open the matter on account of change of opinion regarding the provisions of law as the matter has already been settled up to the level of Appellate Tribunal and the respondents failed to challenge the order of Appellate Tribunal before any higher forum, therefore, same is final between the parties. He relied upon the following judgments:-- (1990) PTD SC 155), (1993 PTD 766) and (1993 PTD 1108) On the basis of the aforesaid judgments, the petitioner's counsel stated that Income-tax Officer has no definite direct information and the Income-tax Officer wanted to get benefit of his own misdeeds; that the petitioner supplied all the information while submitting the return before him, therefore, I.T.O. Has no jurisdiction to re-open the matter. It is further stated that petitioner has no other alternative remedy and the writ petition is maintainable as the law laid down by the superior Courts in the following judgments:-- (1990 PTD SC 155), (1993 PTD 766), (1993 PTD (SC) 1108), (PLD 1971 SC 305), (PLD 1963 SC 322), (1981 PTD 169), (1992 PTD 1671) and (1992 PTD 1).
On the basis of the aforesaid judgment petitioner's counsel stated that even during the pendency of writ petition, the assessm ent order has been passed by I.T.O., even then, the Hon'ble Supreme Court entertained the writ petition and set aside the notice issued by I.T.O. Under section 65 of Income Tax Ordinance.
CL. 224 Vol. XVIII, P.T.C.L., 2000 (Case Laws)
3. The respondent's Legal Advisor stated that petitioner has not submitted complete information alongwith his returns and the respondent was justified to re-open the matter, after obtaining fresh information as is evident from para. 6 of the report and parawise comments; he urged that respondent has not passed any final order against the petitioner only notice under section 65 of I.T.O. Was issued, therefore, writ petition is not maintainable. He relied upon the following judgments:-- (1993 SCM R 493), (PLD 1963 SC 322), (PLD 1965 SC 161), (PLD 1989 SC 360), (1993 SCM R 29); (1993 SCM R 96) and (1993 SCM R 1108).
He further urged that this Court has no jurisdiction to decide the disputed question of facts in Constitutional jurisdiction; that appeal of the petitioner is still pending adjudication regarding the same subject-matter before the appellate tribunal.
In rebuttal, the petitioner's counsel stated that leave granting order has beefi withdrawn by the Hon'ble Supreme Court in (1993 SCM R 1108); he further stated that the aforesaid leave granting order passed in favour of Income Tax Department after considering the cases, the Hon'ble Supreme Court has recalled his leave granting order; that matter has been finally decided up to the level of Tribunal. The Indian High Court in a similar circumstances (1977 ITR 268) has entertained the writ petition. He further stated that the matter before the Income-tax Officer is not similar. He further urged that the writ petitions are maintainable as the principle laid down in Nagina Silk Mills' case (PLD 1963 SC 322) and it still holds the field. This case was considered in all the subsequent judgments but this view was not changed by the Hon'ble Supreme Court.
4. I have given my anxious consideration to the contentions of learned counsel for the parties and perused the record. It is admitted fact that the petitioner has challenged the vires of notice, dated 28-5-1999 on the ground that the notice does not reveal at Pak Arab Fertilizers (Pvt) Ltd. Vs. Deputy C.I. T. CL. 225 {Ch. Ijaz Ahmad, J.} all that the respondent has definite information that the petitioner concealed material facts from the respondent at the the of submitting income returns for the years in question. The matter has been finally adjudicated up to the level of appellate tribunal, therefore, the same is past and closed transaction; whereas the respondent has taken different stand while submitting reply of para. 6 of writ petition that the respondent has now come into possession of an evidence whereby it is established. That M/s. National Fertilizer Marketing Ltd. Has been selling on behalf of the producing units acting as a dependent agent of all these units, therefore, actual supplies do not constitute to it but to the network of fertilizer dealers/stockist. On such supplies tax under section 50(4) was not deductible as the real purchases did not enjoy the status of Limited Companies. Similarly in reply of para. 8, the respondent submitted that the petitioner did not disclose true nature of its sales as the petitioner is one of the Fertilizer manufacturing units owned by National Fertilizer Corporation and sale of entire products are managed by N.F.M.L. Directly to the stockist on behalf of petitioner. The relationship of buyer and seller, therefore, did not exist between the petitioner and N.F.M.L. Rather it was that of a principal and agent. In reply of para. 9 the respondent stated that assessm ent already completed and decided in appeal have now been reopened under section 65 on the basis of definite information which was not on records at the the of earlier assessm ent. The nature of controversy between the parties to the petition by itself falls in the area of factual controversy. In case the contents of writ petitions and parawise comments are put in juxtaposition which cannot be resolved in Constitutional jurisdiction of High Court. I am fortified by Muhammad Younas' case (1993 SCM R 618). It is consistent view of the Hon'ble Supreme Court that in case where factual controversy is involved, Constitutional petition is not proper remedy. The petitioner allegedly concealed the material facts while submitting the assessment returns in question which were subsequently discovered by the respondent as is envisaged CL. 226 Vol. XVIII, P.T.C.L., 2000 (Case Laws) by report and parawise comments filed by respondent. It is settled proposition of law that each and every case is to be decided on its own peculiar circumstances and facts. The citation cited by the petitioner's counsel are distinguished on facts and law. In the cited cases the concealment committed by the assessee were not C borne out from the parawise comments of respondent; whereas in the present case contents of parawise comments clearly revealed the concealing of material facts by the assessee. In view of the aforesaid circumstances, the ingredients of assuming jurisdiction by respondent prima fade existed. It is also settled proposition of D law that writ petition is not maintainable qua the show- cause notice. I am fortified by the following judgments:-- (1993 SCM R 493), (1993 SCM R 29), (1993 SCM R 96), (1993 SCM R 1108) and (PLD 1989 SC 360).
It is pertinent to mention here that judgments relied by the petitioner's counsel was considered in the aforesaid judgments i.e., (1990 PTD (SC) 155); (1993 PTD 766). The Hon'ble Supreme Court has deviated/departed from the aforesaid principle and laid down the principle that writ petition is not maintainable against the show-cause notice. Following the Rule laid down in the aforesaid judgments of Hon'ble Supreme Court and also keeping in view the facts that controversial issue regarding factual inquiry are involved. I am of the view that the petitioner if so advised in the first instance, may raise all the objections to the jurisdiction of respondent and also against the maintainability of the proceedings or issuance of notice under section 65 of Income Tax Ordinance, 1979 before respondent, who will decide the same as primary step after giving opportunity of hearing to the petitioner in accordance with law on its merits and keeping in view the observation mentioned in the aforesaid judgments of the Hon'ble Supreme Court. Even otherwise writ petition is not maintainable in view of the law laid down by the Hon'ble Supreme Court in M/s. Bashir & Company's case (1968 SCMR 1997) in which it was held that a party cannot be allowed to