NASIM SIKANDAR, J.- Through this order I intend to dispose of Writ Petitions N6s. 15214/97, 11834/99, Cr. Originals Nos. 1342/98 and 1343/98.
2. The petitioner was incorporated at Lahore on 7th. October,-1991 as a private limited company to engage itself in the business of fabrication of material and fabricated products such as milk containers of bulk size. Commercial production is claimed to have started in July, 1992. For the year 1992-93 first return was filed to declare an income of Rs. 35,13,593/- and exemption from tax was claimed under clause 118-E of the Second Schedule to the Income Tax Ordinance, 1979 (for short the Ordinance). For the year 1993-94 NIL income was declared on the basis of the earlier claim of exemption though business income was shown at Rs. 35,13,593/-. The Assessing Officer rejected the claimed exemption for a number of reasons and proceeded to frame assessments under Section 63 of the Ordinance as best judgment assessments since the assessee after having initially participated in the proceedings absented itself at the later stage. No books of accounts or other similar documents required were submitted. Its claim of exemption was denied inter alia on the ground that necessary preconditions such as single object or installation of a new project were not established. Though no return was filed, an assessment for the year 1992-93 was framed on the grounds that statements of accounts for the period ending on 30.6.1992 indicated receipt of sale proceeds of trial production. Total demand for the year 1992-93 was created at Rs. 4,50,313/- which included an addition under Section 13(1 )(d) at Rs. 8,18,750/-. In the year 1993-94 tax demand was raised at Rs. 29,92,705/-.
3. For the petitioner it is claimed that after filing of first appeal it attempted to serve a notice under sub-section (6) of Section 132 of the Income Tax Ordinance which was politely refused by the Commissioner (Appeals) and instead he proceeded to fix the same for hearing on 4.9.1996. It is also claimed that the first appellate authority completed the proceedings before 30th of September, 1996 and so the draft order available on the record indicated the prayer made in the appeal was accepted. However, according to the petitioner, Commissioner (Appeals) withheld the order to allow the Department to effect recovery of illegal demand earlier created as a result of the said two assessm ent orders, In` the prayer the petitioner has sought a declaration that its appeals before the C.I.T, stand granted under Section 132(5) of the Ordinance. Further that the failure on the part of the Commissioner Appeals to deliver the appellate order is capricious; that the petitioner qualifies for exemption under clause 118-E of the Second Schedule to the Ordinance and that the demand erected for the assessm ent years 1992-93 and 1993-94 is illegal.
4. Subsequently two Criminal Originals mentioned in para 1 of this order were filed on 19.10.1998. In the first petition inter alia coercive measures of recovery inspite of a stay order by this Court were alleged and in the second petition issuance of notice for hearing by the Commissioner Income Tax (Appeals) during the pendency of writ petition was alleged as illegal.
5. The other Constitutional Petition No. 11834/99 pertains to the assessment year 1996-97. It is alleged that the Income Tax Officer respondent No. 2 served an assessment order dated 11.6.1999 assessing total income for the year at Rs. 1,16,97,026/-. According to the petitioner the assessment order so framed is mala fide wherein wrong interpretation of various provisions of the Ordinance including Section 12(18) and Section 80-C of the Ordinance were made; that the claimed exemption had been refused by misreading and misconceiving the facts of the case; that all receipts of the petitioner being subject to the provisions of Section 50(4) of the Ordinance were to be deemed to be the income of the assessee; that in the earlier years the appellant had filed appeal against the two assessm ent orders which inspite of having .Been legally accepted coercive mens rea were adopted and therefore a Writ Petition No. 15214/97 was filed which was still pending; that the Income Tax Officer passed assessment orders for the intervening years beyond limitation and therefore without jurisdiction; that in the year under review viz. 1996-97 the petitioner though filed a return claiming tax liability ' only under Section 80-C of the Ordinance yet the authorities forced it to opt out of presumptive tax regime; that by misconstruing the facts the Revenue has created a demand of Rs. 52,73,020/- while the assessee was liable to pay only Rs. 56,932/-. In the prayer it is stated that the impugned assessment order be set aside and the Assessing Officer be directed to determine the tax liability with reference to Section 80-C of the Ordinance. Also that it may be declared that provisions of Section 12(18) of the Ordinance are not applicable to term deposit certificate issued by the petitioner to its Share-holders.
6. Parties heard. The Revenue, represented by Mr. Muhammad Ilyas Khan, Senior Standing Counsel has resisted both the above petitions as well as those for grant of interim relief, In` his written statement the learned Senior Legal Advisor has challenged the maintainability of both Constitutional petitions as well as the Criminal Originals, In` support of the objection he relies upon two cases reported in 1993 SCMR at page 29 re: Al-Akram Builders and at page 1108 re: Chappal Builders. Learned counsel for the petitioner on the other hand cites the ratio settled in re: Usmani Glass Sheet Factory Ltd. v. Sales Tax Officer (1970 22 Tax 229) 1991 NTR 7 re: Novitas Ltd. And (1990
(61) Tax 105) re: Edulji Dinshaw Ltd. To claim maintainability.
7. After hearing both sides I find that objection of the revenue against maintainability of the petition bears weight. The facts leading to these petitions have been detailed in the preceding paras in order to bring home two things. Firstly that W.P. No. 15214/97 totally revolves around factual assertions. These include the alleged attempt on the part of the petitioner/assessee to give a notice under sub-section (6) of Section 132 of the Income Tax Ordinance, 1979. From the attending circumstances, it is claimed that the Commissioner (Appeals) had taken due notice of the limitation prescribed in that section and therefore he proceeded to fix the appeal for hearing. Next factual submission made is that the appeal of the assessee succeeded which was allegedly supported from the record as a draft order was stated to be available therein, In` order to claim mala fide on the part of the Revenue the third submission is that the Commissioner (Appeals) withheld the appellate order so that the Assessing Officer could effect the recovery of the illegal demand. Prayer made in that Constitutional petition that the appeal before the Commissioner (Appeals) should be declared to have been granted cannot be allowed on the face of it. The aforesaid factual submissions which are otherwise against record cannot be ruled upon in this Constitutional jurisdiction, In` fact these submissions are even contradictory. On the one hand the petitioner claims that its appeal was accepted and in the same breath it is alleged that the appellate order was withheld, It will be noted that the Commissioner (Appeals) decided three appeals of the petitioner for the assessment years 1992-93 to 1994-95 through a consolidated order dated 29.6.1999. That order was rather made a subject- matter of the aforesaid Crl. Original.
Instead of filing an appeal before the Tribunal, the petitioner, keeps on pressing that the first appellate authority had accepted its contentions. There is admittedly no evidence to support the claim that a notice was properly served upon, the Commissioner (Appeals) as envisaged in sub- section (6) of Section 132 of the Income Tax Ordinance, 1979. It will further be seen that inspite of proper service the petitioner absented itself from the' proceedings before the Commissioner (Appeals). Same had been its conduct before the Assessing Officer. The claimed exemption under Clause 118-E of the Second Schedule to the Income Tax Ordinance, 1979 also cannot be considered in this petition. Earlier the Assessing Officer had rejected the claim on the basis of at least two factual findings. First, that the petitioner- company was not formed for a specific purpose as envisaged in the aforesaid clause and secondly that it had failed to establish that its project was newly established within the period prescribed in that clause.
8. All the assertions of fact started from claim of exemption to the alleged entitlement of assessee to the benefit of sub-section (5) of Section 132 of the Ordinance cannot be ruled upon in this Constitutional petition.' The petitioner having adopted the prescribed channel under the Ordinance it cannot be allowed to abandon the same at its fancy. The principle settled by. The Supreme Court in re: Al- Akram Builders (supra) squarely applies to the case of the petitioner. Also there hardly appears any truth in the statement that the remedy of appeal before the Tribunal is not adequate.
The cases relied upon in support of the maintainability are clearly distinguishable, In` re: Usmania Glass Sheet Factory Ltd. v. Sales Tax Officer, Companies Circle-IV (supra) regular assessment had not been completed and therefore, the petitioner approached the High Court in writ jurisdiction, In` re: Edulji Dinshan Ltd. (supra), no factual submission was involved as the case of assessee- company was re-opend for 10 years during which admittedly they had not purchased either a plot or had constructed a new building. Notice under Section 65 of the Ordinance was issued to say that the assessee engaged in selling and purchase of properties.
9. Learned counsel for the revenue is also correct in pointing out that view of the Supreme Court against exercise of Constitutional jurisdiction in tax matters is more than evident in recent times.
The two cases relied upon by him make his point, In` re: Al-Akram (supra) their Lordships disapproved the exercise of Constitutional jurisdiction where a party opted to invoke remedies provided for under the relevant statute, In` the other case re: Chappal Builders, Supreme Court recalled a number of recent judgment wherein interference by the High Court in tax matters was disapproved. Emphasising the rule of alternate remedy their Lordships desired that it should be followed in tax matters as well.
10. The situation in W.P. No. 11834/99 is also not different. A regular assessment order was framed by the Assessing Officer on 11.6.1999. The assessee instead of filing an appeal before the next forum has filed a petition with the prayer that the Assessing Officer should be directed to determine its tax liability in accordance with Section 80-C of the Income Tax Ordinance, 1979. Also that provision of Section 12(18) of the Ordinance do not attract to the issue of term Deposit Certificates issued by the petitioner to its share-holders. The only reason to file the petition is that the issues require interpretation of provisions of law which only this Court could do. The contention does not carry weight. An assessm ent order is liable to be assailed before the Commissioner (Appeals) and then parties can approach the Tribunal to second appeal. If a question of law arises out of the order of the Tribunal, an assessee as well as the Revenue can approach this Court under Section 136 of the Ordinance. If parties are allowed to jump forums as the assessee before us is attempting to do, then the whole machinery provided for that purpose will become redundant. A petition of the kind cannot be entertained as this Court is also an appellate forum for the matter in hand, In` re: Shadman international (Pvt.) Ltd. v. I.T.O. (1991 PTD 387) a Division Bench of the Karachi High Court expressed the view that the High Court does not lightly deprive the hierarchy of Tribunals, their jurisdiction under the relevant special statute. The only exception being that the impugned action was patently without jurisdiction or was coram non judice or mala fide and that it would be a futile exercise if the case is allowed to be proceeded. None of the aforesaid conditions is satisfied in the case of the present assessee. The claim that is only this Court which could interpret the provision of Section 80-C or Section 12(18) of the Ordinance is also not acceptable. At least not as a ground to by-pass the regular appellate forums. Every official functionary in conduct of his usual business interprets laws and regulations. The position of Assessing Officer and Commissioner (Appeal) under the Ordinance is rather different as they act as Tribunals a gi/as/'-judicial jurisdiction. Then the Income Tax Appellate Tribunal is a judicial forum available to the parties for that very purpose.
To allow the contention will amount to make this Court as a concurrent forum with even the Assessing Officer. For, if a person is allowed to assail an assessment order other another can come even earlier to the assessm ent to seek advice on interpretation of statutes. Every person then will have a choice either to approach the concerned authorities or this Court in its Constitutional jurisdiction. This was neither the intention of the framers of the Constitution nor it is simply practicable.
11. The aforesaid assessm ent order indicates that no claim of coverage of Section 80-C was made in the first instance. The original return declared loss of Rs. 4,620/-. It was negated by subsequent filing of a statement under Section 143 of the Ordinance. The claim of the assessee was refused on the ground that it had failed to make option as contemplated in clause 9 of Part-IV of the Second Schedule to the Income Tax Ordinance as amended by the Finance Act, 1996. All these issues, it will be seen are not purely of law. The kind of direction prayed for in this writ petition otherwise cannot be made as long as appealable order remains in the field. The kind of direction sought for will amount to intermingling of Constitutional and appellate jurisdiction vested in this Court. The nature of both jurisdictions obviously does not permit even a serious attempt. The cases relied upon by the revenue support the objection. The petitioner has not been successful in establishing that an appeal before the Tribunal against the consolidated order of the Commissioner (Appeals) dated 29.6.1998 was not an adequate remedy; that the aforesaid assessment order for the year 1996-97 could not be a subject-matter of appeal before the Commissioner (Appeals). To disturb the hierarchy of forums created by law the petitioner had to make out a water tight case while it does not have an arguable case for grant of the aforesaid prayers.
12. Both Criminal Originals were filed only to pressurize the revenue officers. There being no order of this court for suspension of- proceedings before the Commissioner (Appeals) the contentions made in this regard appear frivolous, In` the other Cr. Org. No. 1342/98 again the order of this Court dated 7.7.1997 has been misinterpreted. Even from the contents of the petition alleged violation of the order is not made out.
13. Therefore, both the writ petitions as well as Crl. Originals shall be dismissed in limine.