S. AHMED SARWANA, J. - The brief facts as disclosed in the petitioner are that Roche Pakistan Limited ("Roche"), a public limited company incorporated in Pakistan is a wholly owned subsidiary of Roche Holding Ltd., Switzerland and carries on business in the fields of pharmaceuticals and diagnostic products. For the purpose of Income Tax Ordinance, 1979 (hereinafter referred to as "the Ordinance") Roche is categorized as an assessee resident in Pakistan, It manufactures and sells Roche Pharmaceutical specialists and additionally imports in finished form and sells in Pakistan certain pharmaceutical specialities and diagnostic products. It is stated that the payments received by Roche on sale of goods manufactured by it are subject to deduction of tax at source by the payer under Section 50(4) of the Ordinance except where exempted by notification and on the goods imported by it advance tax is collected by the Collector of Customs under Section 50(5) of the Ordinance.
2. It is further stated that by Finance Act, 1991, Section 80-C was added in the Ordinance introducing a presumptive tax regime whereby the tax liability is not calculated on the basis of total income of the assessee and under Section 80-C the aggregate of tax deductible at source and tax collectable at import stage is deemed on recovery to be the final discharge of tax liability on income arising from the sale of the goods manufactured or imported by it. Consequently, from the Assessm ent Year 1992-93 the income of the petitioner arising from the manufacture and sale of the pharmaceuticals products became assessable under Section 80-C of the Ordinance by virtue of the Clause 9 of Part JV of the Second Schedule of the Ordinance initially by failure to opt our of the presumptive tax regime and later by filing the declaration dated 30.9.1998 opting for the presumptive tax regime and such a declaration was reiterated for the Assessment Year 1999-2000 as a matter of abundant caution, it is alleged that by doing so Roche was entitled in the past and remains entitled to have its income assessed in accordance with Section 80-C of the Ordinance insofar as its income is assessable under the said section, In respect of Assessment Year 1999- 2000 Roche filed a statement required under Section 143B of the Ordinance in respect of its income insofar as it is assessable under Section 80-C of the Ordinance and also filed a return of income under Section 55 of the Ordinance in respect of its income to the extent it is not assessable under Section 80-C of the Ordinance, It has further alleged that the Income Tax Department in the past consistently determined its income assessable under the presumptive tax regime and also under the normal tax regime and determined additional amount as alleged profits under Section 79 of the Ordinance in respect of the imported raw materials by it and treated only a proportionate part of such amounts as additions to the petitioner's income in the ratio which that income assessable in the .Normal manner bears to the income assessable under the presumptive tax regime under Section 80-C of the Ordinance, It has added that in respect of assessment years 1989-90 to 1997- 98 the Income Tax Appellate Tribunal set aside the additions of its income under Section 79 of the Ordinance for the reason that the power under Section 79 had been, incorrectly invoked and as such the issue of Section 79 remains under consideration of respondent No. 1 (Deputy Commissioner of Income Tax). Roche has asserted that respondent No. 1 will again make an addition under Section 79 of the Ordinance for the Assessment Year 1999-2000 and apprehends that on this occasion respondent will unlawfully deviate from the past practice of treating only proportionate part of the profit under Section 79 as an addition to the income assessable in the normal manner. This apprehension according to Roche arises from the letter dated 11.12.2000 addressed to it by respondent No. 1, the concluding paragraph of which reads as follows:- "You will appreciate that when provisions of Section 79 is attracted, if warranted by law on the facts and circumstances of the case, the difference is deemed to be income of the resident assessee and shall be included in the total income of the resident. This point of view is settled at the appellate level in case-laws cited above. You will further appreciate that income/addition u/S. 79 is not expenses or disallowance as envisaged in Section 23 or 24 of the Income Tax Ordinance, 1979, therefore could not be prorated in case of mixed income i.e. Income covered u/S. 80-C.
In view of the above legal position if I decide, on the merits of the case, that Section 79 is involved the deemed income shall be added to TOTAL INCOME after arriving at a total income from sources other than 80-C, as envisaged in law. Your comments if any on this issue are requested."
3. Roche has filed this Petition challenging the letter dated 11.12.2000 issued by respondent No. 1, seeking basically the following relief; "(a) declaring that the notice of the respondent No. 1, dated 11th December, 2000 Annexure "F", insofar as it proposes to assess in the normal manner the whole of the alleged profits determined under Section 79 of the Ordinance, instead of a proportions part thereof relatable to the petitioner's income assessable in that manner, has been issued without jurisdiction and is of no legal effect and that the intended assessm ent and recovery of tax in the manner threatened is without lawful authority.
(b) quashing the notice Annexure "F", insofar as it proposes to assess in the normal manner the whole of the alleged profits determined under Section 79 of the Ordinance instead of a proportionate part thereof relatable to the petitioner's income assessable in that manner.
(c) directing the respondents and each of them, where the petitioner has income assessable under Section 80-C of the Ordinance as well, to refrain from assessing or recovering tax from the petitioner by assessing in the normal the whole of the alleged profits determined under Section 79 of the Ordinance instead of a proportionate part thereof I relatable to the petitioner's income assessable in that matter."
4. The Court issued Pre-admission Notice of the Petition and the Application for grant of Temporary Injunction to the Deputy Commissioner of Income Tax (respondent No. 1) and the Commissioner of Income Tax (respondent No. 2). Respondent No. 1 filed a counter- affidavit to the petition as well as the interlocutory application, In the counter-affidavit to the petition respondent No. 1 raised the preliminary objection that the petition was not maintainable as alternate adequate remedy by way of appeal ^s available under the Ordinance and that the petition was premature as respondent No. 1 had only issued a show-cause notice under Section 62 of the Ordinance asking the petitioner to explain his case. He added that a Constitution Petition could not be used as an alternate forum in place of the one provided by the special law i.e. The Ordinance, particularly when there was no order either in original or appellate which was impugned before this Court. On merits, while referring to Section 79 of the Ordinance, he submitted that the said section is an independent deeming provision and does not have any nexus with Section 80-C of the Ordinance.
The petitioner filed an affidavit-in-rejoinder disputing the assertions made by respondent No. 1.
5. Mr. Fateh ali Vellani, learned counsel for the petitioner submitted the following arguments in support of the petition.
(i) where an impugned order passed by an authority is palpably without jurisdiction and/or mala fide, a person has the right to approach the High Court in its Constitutional jurisdiction instead of resorting to the forum provided under the relevant statute which may not be just and proper. He cited the case of Attock Cement Pakistan Ltd. v. Collector of Customs (1999 PTD (SC), Central Insurance Company v. CBR (1993 SCMR 1232), CIT v. Jennings Private School (1993 SCMR 96), Julian Hoshang Dinshaw Trust v. 1TO (1992 PTD 1(SC) and Eduljee Dinshaw Limited v. 1TO (1990) 61 Tax 105
(SC) wherein petitions were filed at the stage of notice and were allowed by the Supreme Court.
(ii) Respondent No. 1 has already expressed his opinion in detail in the notice dated 11.12.2000 by stating the manner in which he proposes to deal with the case of the petitioner and submitted that where the authority concerned or an appellate authority has already expressed its view, the Constitutional jurisdiction of the High Court may be invoked because following the statutory remedy would be futile on the ground of lack of jurisdiction and/or mala fide. He referred to the cases of Eduljee Dinshaw Limited v. 1TO (1990) 61 Tax 105 (SC), Adamjee Insurance Co. Ltd. v. CBR (1989 PTD 1090 Karachi H.C.) and Ms. Tayabba v. The Controller of Examinations (PLD 1976 Karachi 481) in support of his submission.
(iii) Where a provision contains non-obstante clause, the intent is that it should prevail over of other provisions of the statute Section 80-C of the Ordinance starts with the expression "notwithstanding anything contained in the Ordinance or any other law for time being in force" and therefore the provisions of Section 80-C shall prevail over all other provisions of the Ordinance and the tax paid under this section should be treated as the total liability of the petitioner in respect of such goods and it should not be made subject to any other liability under any other section of the Ordinance. He referred to the judgment in Prince Glass Works Ltd. v. CBR (1995) 71 Tax 227, Ellahi Cotton Mills Ltd. v. Federation of Pakistan (PLD 1997 SC 382) and CIT v. National Agriculture Ltd.
(2000 PTD 254) in this connection.
6. In reply Mr. Aqeel Ahmed Abbasi, learned counsel for the Department submitted as follow:-
(i) Adequate, alternate and efficacious remedy is available under the provisions of the Ordinance and as such the Constitution Petition is not maintainable and referred to judgments in the cases of Shagufta Begum v. 1TO (PLD 1989 SC 360), Khalid Mehmood v. Collector of Customs (1999 SCMR 1881), H.M. Abdullah v. 1TO (1993) 68 Tax 29 and CIT v. Hamdard Dawakhana (1993) 67 Tax 1 (SC).
(ii) Respondent No. 1 has simply issued show-cause notice under Section 62 of the Ordinance before passing any order as required under the said section. The assessment proceedings are still in progress. The Officer has not made up his mind and will pass an order after hearing and considering the petitioner's answer and explanation and the apprehension of the petitioner that respondent No. 1 shall act in a particular manner cannot be made a ground for invoking Article 199 of the Constitution.
(iii) The petitioner is challenging only one of the several queries raised by respondent No. 1. The notice has to be seen as a whole and not in pieces.
(iv) The basic controversy raised in inclusion of income under Section 79 into other income of the petitioner. The case of Ellahi Cotton Mills Ltd. Does not deal with Sections 79 and 80-C of the Ordinance and as such it is not applicable to the circumstances of the present case. He added that the principle of res judicata does not apply as every year's proceeding is independent and has to be decided on its own merits and referred to the case of Central Insurance Company v. CBR (1993 SCMR 1232).
(v) On 17.2.2001 after filing of the petition Roche replied to the show-cause notice relating to the applicability of Section 79 of the Ordinance respondent No. 1 will now look into the answers given by Roche and decide the matter in accordance with law applicable in the circumstances of the case.
Consequently, the Court should dismiss the petition and not restrain respondent No. 1 from performing his duty as required by law.
7. Exercising his right of reply, Mr. Vellani reiterated that where there is lack of jurisdiction or mala fide on the part of any authority a Constitutional Petition is an appropriate remedy as held in the case of Khalid Mehmood v. Collector of Customs (1999 SCMR 1881) and Al-Akram Builders v. ITAT (1993 SCMR 29). He also attempted to distinguish the cases on maintainability cited by the learned counsel for the Department.
8. We have heard the arguments of Mr. Fateh ali Vellani, learned counsel for petitioner, Mr. Aqeel Ahmed Abbasi, learned counsel for the respondents, have perused the documents attached with the petition and the relevant law cited by the learned counsels.
9. Roche imports raw materials for manufacture and sale of pharmaceutical products and also imports pharmaceutical specialties in finished from for sale in Pakistan; On the imported products advance tax is collected by the Customs Department under Section 50(5) of the Ordinance and in respect of local products in many instances tax is deducted at source by the payer under Section of 50(4) of the Ordinance. Roche filed its Income Tax Return for the assessment year 1999-2000 under Section 55 of the Ordinance in respect of its income which is not assessable under Section 80-C of the Ordinance, It also filed a statement under Section 143B of the Ordinance in respect of its income assessable under Section 80-C of the Ordinance. It appears that respondent No. 1 was not satisfied with the information contained in the Return and did not determine the tax liability of Roche under Section 59-A of the Ordinance. Consequently, before finalizing the assessment, respondent No. 1 in exercise of its powers under Sections 61/62 of the Ordinance asked Roche to provide/furnish further information, documents and explanation. A lengthy exchange of discussion and communication took place between the parties by correspondence and personal hearing.
Thereafter on 11.12.2000, respondent No. 1 issued a notice under Section 62 of the Ordinance to Roche asking it to give its comments on the view expressed therein by him. Roche has filed this petition challenging the issue of the notice under Section 62 of the Ordinance on the ground that it is without jurisdiction, mala fide and a sham exercise as respondent No. 1 has already expressed his opinion in the notice and intends to depart from the past practice. The concluding paragraph of the notice has been reproduced above Section 62 of the Ordinance reads as follows:- "62. Assessm ent on production of accounts, evidence, etc. - (1) The Deputy Commissioner, after considering the evidence on record (including evidence, if any produced under Section 61 and such other evidence as the Deputy Commissioner may require on specific points, shall, by an order in writing assess the total income of the assessee and determine the tax payable by him on the basis of such assessm ent: Provided that where the assessee produces books of accounts as evidence in support of the return, the Deputy Commissioner, shall, before disagreeing with such accounts, give a notice to the assessee of defects in the accounts and provide an opportunity to the assessee to explain his point of view about such defects and record such explanation and the basis of computation of total income of the assessee in the assessment order."
10. From a bare perusal of the above section it appeals that if the Deputy Commissioner of Income Tax is satisfied with the information attached with the return and such further information that may be provided by the assessee to him in response to his query, he may assess the total income and determine the tax payable by the assessee; however, if he does not agree with the accounts, information or explanation given by the assessee, he is required to give a notice to the assessee of his disagreement with the accounts and/or the information provided by the assessee and provide him an opportunity to explain his point of view and after considering the same pass the Assessm ent Order which should incorporate the explanation given by the assessee and the reasons for the rejection if the explanation is not accepted by him together with the basis of the computation of the income. An opportunity to the assessee to explain his point of view is therefore a must before passing the order of assessment. From a reading of the above notice under Section 62 of the Ordinance it is clear that respondent No. 1 asked Roche to explain the several points which had arisen from the documents and information provided by Roche. The notice also refers to the applicability of Section 79 in respect of the raw materials imported by the company by giving the comparison of another multinational which had imported the same raw material from the same source but at a lower price relating to which respondent No. 1 had several questions in mind which were stated in the impugned notice and Roche was asked to give its comments on the views expressed by him. A reading of the impugned notice also clearly shows that respondent No. 1 has not made up his mind but has only given another point of view or argument which can possibly be advanced on the basis of the facts and the law applicable to the case and has asked Roche to give its own comments or point of view so that he may decide the issue after proper application of his mind by considering all the pros and cons. Respondent No. 1 has not yet passed the final order.
He has only issued a notice to Roche because he is obliged to do so under Section 62 of the Ordinance before passing the Assessment Order. Therefore, the issuance of the notice by respondent No. 1 cannot be said to be without jurisdiction or mala fide. It would be pertinent to mention here that if respondent No. 1 had made up his mind he would have passed the Assessm ent Order and not issued a notice under Section 62 to Roche to give its comments on the views expressed by him. It is quite possible that the explanation/comments communicated by Roche to respondent No. 1 may find favour with him and he may draw the conclusion desired by Roche Respondent No. 1 cannot be restrained from doing his duty of exercising his powers and applying his mind as enjoined upon him by the general principles of law and Section 62 of the Ordinance specifically to seek clarification from Roche, if he so requires for resolution of the problem. If respondent No. 1 does not agree with the comments communicated by Roche and passes an order which adversely affect the interest of Roche, the latter would be free to resort to the remedies provided by the Ordinance, In no case can this Court at the stage of issue of a simple notice under Section 62 of the Ordinance declare it to be mala fide, without jurisdiction and of no legal effect.
11. Now, under Article 199 of the Constitution, the jurisdiction of the High Court can be invoked, if there is no other remedy provided by law. If a person is aggrieved by an order passed by an Income Tax Officer, the- Ordinance provides an appeal against such an order to the Commissioner of Income Tax and a second appeal to the Income Tax Appellate Tribunal and if the person is still dissatisfied with the Order of the Tribunal, he can refer the question of law arising from the order of the Tribunal for an opinion by a Division Bench of the High Court under Section 136 of the Ordinance, It is well-established that a party cannot be allowed to by-pass the ordinary remedies provided by a statute in favour of a Constitution Petition under Article 199 of the Constitution, In the case of Shagufta Begum v. 1TO (PLD 1989 SC 360), a notice issued by the Income Tax Officer under Section 65 of the Ordinance was challenged. The Honourable Supreme Court held that although a person can come directly to the High Court in a case where the Tribunal lack jurisdiction which is discoverable on the face of the record, it was in the interest of litigants to pursue the remedy with the departmental authorities. The Supreme Court refusing to grant leave to appeal against the judgment of the High Court observed as follow.
"Accordingly we consider it is a fit case in which the petitioner would be well-advised if he raised the pleas sought to be advanced before this Court, in the departmental forum in the first instance and also to pursue the normal channels of appeal/revision/reference which refers to the higher departmental forums."
As discussed above, it cannot be reasonably argued that respondent No. 1 had no jurisdiction or exceeded his jurisdiction by asking Roche to explain several points including the question of applicability of Section 79 of the Ordinance as highlighted by him in the notice.
12. Again in the case of Khalid Mehmood v. Collector of Customs (1999 SGMR 1881), where the petitioner was served with a notice under Section 180 of the Customs Act, 1969, by way of a step to confiscate the seized properties which was challenged in a Constitutional Petition on the ground that it was not in accordance with Section 168(2) of the Customs Act and thus illegal, the High Court found the petition to be not maintainable on the ground that the finding of the Collector of Customs could be questioned before the Customs, Excise and Sales Tax Appellate Tribunal and finally an appear lay to the High Court under Section 196 of the Customs Act. The Honourable Supreme Court observed as follows:- "As to bar of jurisdiction, it to be noted that Article 199 of the Constitution opens with the word to the effect that the High Court may exercise its powers under such Article only "if it is satisfied that no other adequate remedy is provided by law". Adequacy of the alternative remedy, therefore, if there is. Another remedy available, should always attract the attention of the High Court.
There are other matters, however, where the Constitutional jurisdiction under Article 199 cannot be so readily resorted to. One such, falling in this category, would be matters amenable to the jurisdiction of an exclusive Tribunal mandated by the Constitution itself. Another which readily comes to the mind, would be disputes under a statute postulating the appellate or revisional jurisdiction to reside either in the High Court itself or directly in the Supreme Court, In example, essentially relevant to the first, would be the Service Tribunal where the Tribunal is mandated by the Constitution of Pakistan namely, Article 212, thereon and where an appeal lies directly from the Tribunal's decision to the Supreme Court. Obviously, the High Court should be very slow in entertaining disputes covered by the jurisdiction of such a Tribunal even in matters where the High Court's jurisdiction cannot be taken away e.g. Acts which are void, without jurisdiction or coram non judice. In such cases of ouster, the High Court would consider it a better exercise of its discretion not to interfere. More or less a similar principle applies where an exclusive Tribunal or a regular Court has jurisdiction in a matter but the legislation, creating such Court or forum or conferring jurisdiction on the same, also ends up -by providing appellate or revisional jurisdiction to the High Court itself. Obvious examples could be civil and criminal proceedings, emanating under the Code of Civil and Criminal Procedure, Income Tax References. Customs Appeals etc, In such matters, where the High Court itself is the repository of the ultimate appellate, revisional or referral powers, conferred by the relevant-statute, it is in the rarest of cases that the High Court may be persuaded to entertain a Constitutional remedy in preference to its own appellate, revisional or referral dispensation arising in course of time. Some discussion on the point is to be found, regarding Income Tax matters and the alternate remedy of a reference, which lies in a High Court under Section 136 of the Income Tax Ordinance, 1979, in Yasmeen Lari v. Registrar, Income Tax Appellate Tribunal (199Q PTD 967). The Constitutional relief was declined for the sole reason that the alternative of a reference under the suited section of the Ordinance was an equally adequate remedy." (emphasis added)
13. The cases of Centra! Insurance Company v. CBR (1993 SCMR 1232), CIT v. Jennings Private School (1993 SCMB 96), Eduljee Dinshaw Limited v. 1TO, (1990) 61 Tax 105 SC and Arafat Woolen Mills v. 1TO (1990 SCMR 697) cited by Mr. Vellani, learned counsel for the petitioner, are all distinguishable, In all these cases the writ petitions entertained by the High Court were in respect of notices issued under Section 65 of the Ordinance, It may be recalled here that under Section 65 where a Deputy Commissioner of Income Tax finds that for any reason any income chargeable to tax has escaped assessm ent or the total income has been under assessed or assessed at too low a rate or has been subject of excessive relief or refund etc. He is forbidden to initiate any proceedings for reopening an assessm ent unless definite information has come into his possession and he has obtained previous approval of the Inspecting Additional Commissioner of Income Tax in writing to do so. In all these cases the Deputy Commissioner of Income Tax had initiated the reopening proceedings without complying with the strict requirements of Section 65 and consequently, the show- cause notice were set aside on the ground of lack of jurisdiction, In the present case, the impugned notice has not been issued to open an assessment already made by him but the Deputy Commissioner of Income Tax has issued the notice to seek further information in order to comply with the legal requirement of Section 62 of the Ordinance and by no stretch of imagination he can be alleged to be acting mala fide or without jurisdiction patent on the face of the record.
14. In the case of Attock Cement Pakistan Limited Vs. Collector of Customs and others (1999 PTD 1982), because CBR the controlling authority had expressed a definite opinion that accessories and spare parts were not the goods specified in the relevant SRO and the deduction of input tax could be made in respect thereto, the writ petition was held to be in order, whereas in the present case respondent No. 1 has not expressed any definite or final opinion and has only issued a notice as required by Section 62 of the Ordinance before passing the Assessment Order. Further, in the instant case the controlling authority of the Income Tax Department has not expressed any definite opinion on the applicability of Section 79 of the Ordinance in the circumstances of the case in respect of the assessm ent year 1999-2000.
15. In the case of Julian Hoshang Dinshaw Trust Vs. Income Tax Officer and others (1992 PTD 1), cited by Mr. Vellani, the Supreme Court observed that the Supreme Court have the power to examine cases involving fiscal rights on the allegations of misapplication or abuse of power by a public functionary, In the present case, as stated above, respondent No. 1 has not yet applied any law. He has only issued a notice to Roche to give its comments which he is empowered to do. By doing so respondent No. 1 has not misapplied any established law or abused his powers. The case of Julian Hoshang Dinshaw therefore is not applicable to the present case.
16. The judgment in the case of Al-Akram Builders (Pvt.) Ltd. Vs. Income Tax Appellate Tribunal (1993 SCMR 29). States the general principles of law with regard to the powers of the superior Courts to entertain Constitution Petitions where the impugned order/action is palpably without jurisdiction and also observes that "the tendency to by-pass the remedy provided in relevant statute to press into service Constitutional jurisdiction of the High Court has developed lately, which is to be discouraged", In paragraph 8 of the judgment, Sajjad Ali Shah, J. (as he then was) observed that the fact that the 1TO had invoked Section 65 of the Ordinance at the behest of I.A.C. Or somebody else would not render the notice invalid or infirm if he had applied his mind to the facts of the case independently and had formed his independent view. The Supreme Court dismissed the appeal with the direction that the observations of the High Court as to the evasion of the income tax by the appellant in the impugned judgment shall be ignored and it would be open to the appellant to contest the impugned notice under Section 65 in accordance with law. In the instant case also DCIT has applied his own mind to the facts of the case and has issued a notice under Section 62 which cannot be termed as an improper or illegal exercise of authority in any way.
17. It would also be appropriate to refer to a recent judgment of the Honourable Supreme Court of Pakistan in the case of Amin Textile Mills (Pvt.) Ltd. v. CIT and others (2000 SCMR 201) dismissing the petition for leave to appeal against the judgment of the High Court of Sindh against the issuance of notice under Section 65 of the Ordinance because there was no material on record to show that the competent authority had failed to apply its mind to the facts of the case before issuing the notice and confirmed the observations of the High Court that the petitioner should, in the first instance, approach the hierarchy of the forum provided for under the Ordinance instead of filing a Constitution Petition. The Court reiterated that "in the case of Al-Akram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal (1993 SCMR 39), this Court discouraged the tendency to by-pass the remedy provided under the relevant statute to press into service Constitutional jurisdiction of the High Court". The above case highlights the present approach of the Honourable Supreme Court of Pakistan on the conduct of litigants who come running to the High Court against show-cause notice and interlocutory orders instead of challenging the same before the forums provided by the relevant statute. Any deviation of the approach indicated by the Hon'ble Supreme Court would flood the High Court with Constitution Petitions filed every time any authority issues a notice or a party apprehends an adverse interlocutory order thereby stifling the administration of justice which practice must be sternly discouraged.
18. In view of the above discussion, we are of the opinion that the impugned notice under Section 62 of the Ordinance issued by respondent No. 1 to Roche is strictly in accordance with law and is not without jurisdiction and/or mala fide. Consequently it cannot be assailed by filing a Constitutional Petition under Article 199 of the Constitution. Moreover, as adequate alternate remedy by way of appeal before the Commissioner of Income Tax, a second appeal before the Income Tax Appellate Tribunal and thereafter a reference to the High Court under Section 136 of the Ordinance are available to the petitioner, this petition is not maintainable.
19. It would not be out of place to mention here that after filing of this petition, the petitioner submitted his further reply in relation to the question of applicability of Section 79 which was withheld by it in the earlier reply to the notice. The conduct of the petitioner in withholding its response to the applicability of Section 79 in its reply to the notice under Section 62, filing the present Constitutional Petition and thereafter submitting its reply on the question in issue in order to justify the maintainability of the Constitutional Petition cannot validate the proceedings which may otherwise be not maintainable. Respondent No. 1 would now consider the reply filed by Roche, apply his mind and make the assessment in accordance with law. If Roche is aggrieved by the order passed by respondent No. 1, it would be open to it to resort to the statutory remedies available under the law.
20. We may state here that the apprehension of the petitioner that respondent No. 1 would depart from the past practice and give a new interpretation of law is neither justified nor tenable. Suffice it to say that the principle of res judicata is not applicable in income tax cases as every assessment year is an independent proceeding and is decided on its own merits [CIT v. Wahiduzzaman (1965 PTD 283), CIT v. Farrokh Chemical Industries (1992) 65 Tax 239 (sup et)].
21. Having reached the conclusion that the petition is not maintainable, It is not necessary to discuss the other contentions advanced by the learned counsels. The petition alongwith the interlocutory application are accordingly dismissed in limine. As the petition has been dismissed after notice to the respondent who were constrained to engage a counsel, they shall be entitled to costs.