NASIM SIKANDAR, J.- The petitioner is an assessee of the Income Tax Department and derives income from selling ice cream under a particular name. For the assessment year 2000-2001 his income was assessed at Rs. 27,83,750/- against the income of Rs. 2,85,000/- assessed in the immediate preceding year viz. 1999-2000. It is the case of the petitioner that the impugned against framed on 26.2.2002 its mala fide and illegal. Therefore, a declaration is sought that it is illegal and void, In the alternative a direction is sought to respondent No. 2- Commissioner of Income' Tax (Appeals) Zone-IV, Lahore to entertain his appeal without payment of 15% of the demand created as contemplated in sub-section (2) of Section 129 of the Income Tax Ordinance, 1979.
2. After hearing the learned counsel for the parties I am not persuaded to grant any of the two prayers. The issue if there was any material to enhance the declared sales from Rs. 27,64,000/- to Rs. 1,217,75,000/- in the year in question cannot be gone into in Constitutional jurisdiction. The effect of the history of assessee and its impact in the subsequent years can properly be considered by the appellate forums provided under the Ordinance. The assessee may have a valid objection against 'the abnormal increase in sales in the year under review. Particularly for the reason that the sales were determined in 'the la st year at Rs. 33 lac after a detailed probe. However, the mere fact that estimation of sales in the year under review indicate abnormal increase when compared with the preceding year does not by itself makes the order mala fide or 'without jurisdiction.
3. In support of alternate prayer for entertainment of appeal without payment of i!5% of the demand created learned counsel for the petitioner heavily relies upon re: Messrs Chenab Cement Product (Pvt.) Ltd. v. Banking Tribunal, Lahore (PLD 1996 Lahore 672) and re: Messrs Sonia Silk, 108- Anarkali v. The Central Board of Revenue (2001 PTD 1789). In the first judgment re: Messrs Chenab Cement Product (supra), a Full Bench of this Court found the first proviso to Section 9 of the Banking Tribunal Ordinance (LVIII of 1984) making right of appeal subject to condition of deposit of decretal amount to be a negation of right of appeal, In the second case re: Messrs Sonia Silk (supra) the first case was followed by a learned Single Bench of this Court who was also a member of the full Bench in the above case.
4. The said judgment of this Court re: Messrs Chenab Cement Product (supra) in my view is clearly distinguishable. The first proviso to Section 9 of the said Ordinance required deposit of the total decretal amount before an appeal could be entertained. That condition was found by the Hon'ble Full Bench to be a negation of right of appeal. The situation in sub-section (2) of Section 129 of the Income Tax Ordinance, 1979 is however, different. Here it is provided that no appeal against an assessm ent order shall lie unless tax payable under Section 54 (payment of tax with return of income) and not less than 15% of the amount of tax assessed has been paid. This condition to my understanding is neither unreasonable nor confiscatory. The legislature in its wisdom has taken care of two things. Firstly, filing of frivolous appeals has been checked and secondly, the smooth recovery of tax already assessed has been ensured. After an assessment has been framed the liability of an assessee becomes crystalized and generally it is only the quantum which is contested and debated at the appellate forums.
5. The apprehension of the learned counsel for the petitioner that the condition so laid is likely to be misused by the Assessing Officer even if accepted as correct cannot by itself be a good ground to declare the provision to be unconstitutional or ultra vires of the powers to the legislature. His view that an assessee can very conveniently be deprived of even the right of first appeal by creating exorbitant demand may have an element of truth in it. However, this Court is Constitutional jurisdiction can always sit in judgment to see if an Assessing Officer had patently acted in a mala fide manner or had passed an order to create an imaginary demand only with the purpose to hook a citizen beyond his capacity, In the case in hand and similar other cases mere enhancement in the estimated turn over cannot be said to raise a question for determination in Constitutional jurisdiction nor on such ground a provision of law can be declared to be void. Where the legislature is competent to enact law the fact that it is likely to be misused in certain cases or that at times it may result in harshness cannot be itself be a good ground to strike down the same. In cases of palpable misuse of official authority or its exercise in a colourful manner the Constitutional jurisdiction of this Court is always available to an assessee. However, as observed earner where the legislature is competent to enact law this Court will be very slow in declaring the whole or a part of it 10 be un-constitutional only on account of harshness or the assumption"that it is likely to be misused.
6. The Hon'ble Supreme Court of Pakistan in re: Messrs Elahi Cotton Mills Ltd. And others v.
Federation of Pakistan (PLD 1997 SC 582) observed that a tax policy in its operation may result in hardships or advantages or disadvantages to individuals-assessee which are incidental and un- avoidable. In the view of their Lordships such a situation simplictor will not constitute violation of any fundamental right, In case of laws relating to economic activities the apex Court desired that these should be viewed by the Courts with greater latitude than the laws relating to civil rights such as freedom of speech, religion etc. Keeping in view the complexity of economic problems which do not admit of solution through any doctrinaire or strait jacket formula.
7. As observed earlier the provisions of Section 129(2) making right of appeal conditional to payment of not only the admitted liability but also 15% of the demand already created should be seen in the perspective of the aforesaid observations of the Hon'ble Supreme Court. These provisions even otherwise do not appear either unreasonable or confiscatory in nature. The Income Tax Ordinance being a complete Code provides for not only refund of the amounts over paid but also contain provisions with regard to adjustment against further demands of the sums over paid.
The Income Tax being a perennial levy any amount over paid is readily available not only for refund but also for adjustment. Therefore, there is no question of extreme hardship as is being alleged at the bar. The fact that obtaining a refund or its adjustment involves practical difficulties does not mean that the law has failed to provide for a proper mechanism for relief in cases of over payments to the revenue.
8. That being so, for the aforesaid reasons I will refuse to entertain the petition either to determine the turn over of the petitioner on the ground of its being against the history of the case nor I will make a direction to the respondent No. 1-First Appellate Tribunal to entertain the appealed of the assessee without complying with the condition of payment of part of the tax as directed in sub- section (2) of Section 129 of the Ordinance. The legislature while being competent to provide a right of appeal is very well competent to make it subject to any reasonable condition. The exercise of right of appeal in the present case cannot be said to have been either abridged or made illusory only for the reason that a part payment of tax is required to be made before its exercise. That direction in my view is neither confiscatory or unreasonable nor impossible to be complied with.
This petition shall, therefore, be dismissed in limine.