MUHAMMAD ARIF, J.- This is a second round in which challenge to the issuance of notice under Section 65 of the Income Tax Ordinance, 1979 (hereinafter referred to as the Ordinance) was considered by the High Court as well as by the Deputy Commissioner of Income-tax/Wealth Tax, Circle 15, Company Zone-1, Income Tax Complex, Lahore (hereinafter referred to as DCIT). The earlier petition by the petitioner- company bearing Writ Petition No. 9180 of 1999 was disposed of on 24.5.1999 with the observation that as the preliminary objection regarding the jurisdiction of the DCIT already stood made, he (DCIT) should have attended the same and "the authority has to decide the objection pertaining to his jurisdiction and has to satisfy that he has the jurisdiction to intervene in the matter." It was thereafter that the DCIT proceeded with the reconsideration of the matter and came to a definite conclusion that the proceedings under Section 65 of the Ordinance in relation to Assessm ent Years 1996-97 and 1997-98 did not suffer from any legal taint whatsoever within the contemplation of Section 65 ibid. The observations were that it was during the assessm ent proceedings that the break-up of salary and prerequisites etc. Paid to the employees/director were not forthcoming hence the Assessing Officer could not apply his conscious mind to this legal issue of inadmissibility of expense under Section 24(1) of the Ordinance (incorrectly described as Section 29(1) in the order/letter of DCIT, dated 15.6.1999). It was observed that "as stated above from the perusal of the record of your director this information has been collected by the undersigned. The case-law which is on all fours with your case has been reported as 67 TAX 222. In this case of Pakistan Tobacco Company reopening of the case under Section 65 by the Assessing Officer due to this reason was held to be in order by the High Court and quoted with favour by the Supreme Court."
2. It was the above order of DCIT dated 15.6.1999 against which Writ Petition No. 11922 of 1999 was resorted to by the petitioner with the following prayer-clause:-- "In view of the foregoing submissions, it is most respectfully prayed that the impugned Notices u/S. 65 of the Income Tax Ordinance, 1979, dated 15.6.1999, for both the Assessment Years 1996-97 and 1997-98 may very kindly be quashed.
"Any other relief which this Honourable Court may deem fit and proper, may also kindly be awarded to the petitioner.
"Costs may also be awarded to the petitioner."
3. Learned Judge in Chambers was not inclined to accept Writ Petition No. 11922 of 1999 as below:-- "The petitioner intends to challenge, in this Constitutional petition, order passed by respondent No. 1, without availing remedies in the hierarchy of jurisdiction. The petitioner can either challenge the order in appeal or revision or in appeal against the final order, before the hierarchy of jurisdiction.
The statute provide for more than two appeals and authority constituted for purposes of hearing appeal can competently deal with the objection, if raised at the appropriate stage. This petition is, therefore, not maintainable.
"Even otherwise, the plea that the order could be interfered with on merit will not be a ground for interfering in writ jurisdiction, as such like points can be raised in appeal where the objections will be dealt within accordance with law and rules."
4. It appears that the main reason for non-suiting the petitioner was that the remedies provided under the Ordinance against the orders to be passed by the Officers in the departmental hierarchy can be resorted to at appropriate stages of the proceedings and that without waiting for an order against the petitioner within the hierarchy of Officers/Tribunals the resort to the Constitutional jurisdiction of the High Court was not sustainable.
5. Mian Ashiq Hussain, learned ASC appearing in support of this petition has reiterated the stand of his clients to the effect that as there is no remedy provided in the Ordinance itself in relation to the proceedings initiated under Section 65 of the Ordinance, therefore, resort to the Constitutional jurisdiction by them was in order. He has referred to M/s. Arafat Woollen Mills Limited Vs. The Income Tax Officer, Companies Circle C-1 Karachi (1990 SCM R 697) and Edulji Dinshaw Limited Vs. Income Tax Officer (PLD 1990 SC 399) to contend that there is no provision made in the Ordinance to the effect that the issuance of a notice under Section 65 ibid Ordinance can be countenanced if the prerequisites/conditions for satisfaction of the concerned official are not forthcoming on the record. The precise plea was that if the issuance of such a notice suffers from any infirmity in law then the same can be successfully impugned by an interested litigant/party for appropriate relief under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. He concluded his arguments by referring to Commissioner of Income Tax, Zone-D, Karachi l/s. Jennings Private School (1993 SCM R 96) wherein it was held that:- "There cannot be any controversy that an assessment order framed under the Scheme without asking for further information and documents under the relevant paras of the Scheme stands on a different footing than an assessm ent order made after detailed scrutiny and examination of the record under Section 61 of the Ordinance, and conscious application of mind to the material facts.
The principle of change of opinion cannot be made applicable to the former case as in such a case upon discovery of the factum that the income chargeable to tax under the Ordinance has escaped assessm ent, on the basis of definite and reliable information, assessment can be reopened by virtue of clause (c) of sub-section (1) of Section 65 of the Ordinance, but in the later case, a notice under Section 65 of the Ordinance cannot be sustained unless it is shown that the new information or document was not available before the Income Tax Officer when the assessm ent order was framed and/or the Income Tax Officer failed to apply his mind consciously to the matters in respect of which notice under Section 65 of the Ordinance is issued and/or the assessee was guilty of concealment of material facts or he managed and/or manoeuvred the assessm ent order with the help and/or connivance of the assessing authority, which fact is apparent from such assessm ent order."
6. We have considered the arguments addressed at the bar and also gone through the available material. There is no cavil with the proposition that if the issuance of notice under Section 65 of the Ordinance suffers from the taints noticed in the precedents afore-mentioned only then the Constitutional jurisdiction of the High Court will be attracted thereto. Here, a simple perusal of the order made by the DCIT after remand of the matter by the High Court in the earlier round of litigation shows that the information collected by him in relation to the disputed years of assessm ent i.e. 1996-97 and 1997-98 clearly falls within the ambit of fresh and definite information regarding the dispute revolving around the said assessment years in relation to the "employees/director". The excerpts from the impugned judgment quoted by us in para 3 above clearly clinch the matter when the same are read in conjunction with the observations made in the precedent cases to the effect that unless the issuance of notice suffers from taints detailed therein, the Constitutional jurisdiction of the High Court cannot' be resorted to.
7. Resultantly, this petition fails and is hereby dismissed. Leave to appeal is refused.