MUHAMMAD ARIF, J. - This petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 seeks leave to appeal against judgment dated 22.12.1999 passed by a learned Judge in Chambers of the Lahore High Court, Bahawalpur Bench, Bahawalpur whereby Writ Petition No. 5408/1999/BWP brought by Sheikh Allah Ditta, Managing Partner of Association of Persons (AOP) ....
"Sh. Muhammad Amin St Sons:, K.L.P. Road, Sadiqabad, District Rahimyar Khan, was dismissed with, among others, the following observations:- "8. I am in agreement with the arguments of theXXII Sh. Allah Ditta V. Asstt. Commissioner of I.T.'
(Muhammad Arif, J.)learned counsel for the respondents that order dated29.6.1998 whereby the earlier assessm ent made vide order dated 30.6.1994 was cancelled being an appealable order u/S. 134 of the Income Tax Ordinance, 1979 was not challenged by way of an appeal. Thus the same attained finality and it cannot be now challenged through the instant writ petition.
"9. The learned counsel for the petitioner also frankly concedes to this aspect of the case.
"10. Lt was rightly pointed out by the learned counsel for the respondents that de novo assessment for the year 1993-94 was ordered within a period of four years thus the same was within the limitation provided under Section 66A of the Ordinance.
"11. That no doubt effort was made to change the status of the petitioner from a registered firm to AOP but as is evident from the relevant record that the same was not done before 30.6.1993:--
(a) Self assessed income tax return for the year 1993-94 does not show that it was filed being an AOP;
(b) The memorandum acknowledging the receipt of the document in Form D, dated 14.11.1993 issued by Registrar of Firm Bahawalpur Division shows that notice of change bears dated 28.6.1993 but the same was actually submitted on 16.10.1993; and
(c) Para 2 of the writ petition shows that the status was changed to an AOP through application dated 30.8.1993. Para 2 as a whole is reproduced as under:- "That Sh. Muhammad Ameen St Sons was a registered firm uptill financial year 1992-93, from 1,7.1992 change in the Constitution of Business was made and claim of registrationunder Section 68 of the Income Tax Ordinance was withdrawn through an application dated 30.8.1993 and thus status was so changed to an association of person - AOP."
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12. That there is nothing on the record which may even suggest that Section 8Q-D ibid could not be made applicable to the case of the petitioner.The concerned authorities applied the same bn a due appreciation of facts and law.
"13. Even otherwise, respondent No. 3 while disposing of the revision petition of the petitioner vide his impugned order dated 2.11.1999 has thoroughly scanned the matter and allowed the permissible concessions that is why the amount of payable tax was reduced from Rs. 18,20,222/- to the tune of Rs. 15,12,469/-. The controversy also involves the disputed questions of fact which cannot be probed into through the instant proceedings."
2. Mr. Zia Haider Rizvi learned ASC has almost reiterated verbatim the grounds taken in the memo, of this petition to the effect that:-
(i) the High Court is in error in applying Section 80-D of the Income Tax Ordinance, 1979, hereinafter referred to as the Ordinance, in that his clients enjoy exemption under 2nd Schedule, Part IV, Clause
(14) of the Ordinance from application of Section 80-D ibid, irrespective of its status as (a)
Registered Firm (b) Company or (c) Association of Persons;
(ii) the learned judge in Chambers is in error in omitting to give any finding on the point of addition made under Section 13(1 )(aa) of the Ordinance as it corresponds to the amount of disallowed depreciation and, therefore, it cannot be added as investment under Section 13( 1 )(aa) ibid;
(iii) the observations made in the impugned judgment that the writ petition involved any disputed question of fact which cannot be made the subject-matter of petition under Article 199 of the Constitution;
(iv) the order under Section 66-A of the Ordinance had set aside the original assessment under Section 59( 1) of the Ordinance and thereafter subsequent assessment proceedings clearly fall in the category of "fresh proceedings";
(v) the petitioner moved Rectification Application under Section 156 on 28.4.1999 which has not been disposed of "by proper order so for and after 30.6.2000 it shall take deeming effect of rectification being allowed under sub-section (3) of Section 156 of the Ordinance" and4
(vi) the status of the Company is that of AOP, return was filed as AOP, the assessee was required to be assessed as an AOP; using of wrong forum by the Assessing Officer while making Section 59( 1) assessm ent should not prejudice the assessee."
3. Mr. Yawar Yaqoob Ali, learned Deputy Attomey General for Pakistan appearing on notice dated 31.1.2000 on behalf of all the official-respondents has supported the impugned judgment with'the assertion that the learned judge in Chambers was quite right in holding that:-
(i) writ petition was not maintainable in that order dated 29.6.1998 passed by respondent- inspecting Additional Commissioner of Income Tax/W. Tax Range-Ill, Rahim Yar Khan was appealable but no appeal having been filed by the petitioner-Company, the same had attained finality;
(ii) the impugned reopening of the matter of assessment having been resorted to within 4 yearswa s in line with the provisions of Section 66(a) ibid, the same could not be interfered with;
(iii) the change of status of the petitioner from a Registered Firm to that of AOP was admittedly made after the assessm ent dated 30.6.1994; and
(iv) Section 80-D ibid was rightly made applicable to the case in hand in that "Goshwara for the year 1993-94 itself contains an item (URDU) = Rs.11,16,000/- remained un-explained..."
He has also referred to Khiali Khan Vs. Haji Nazir and 4 others (1997 PSC 562) in support of his contention that a writ petition against a void order may be dismissed if the person seeking such relief is stopped by his own conduct from challenging the same or if guilty of laches. The precise plea was that as the petitioner did not resort to making an appeal against order dated 29.6.1998 under Section 134 of the Ordinance the result was that the same had attained finality and could not be challenged through a writ petition.
4. We have considered the arguments addressed at the Bar and have also gone through the available material with the help of Mr. Rizvi as also the learned Law Officer.
5. It is common ground between the parties that the learned Judge in Chambers considered the respective pleas raised on behalf of the parties and came to the conclusfon that the earlier assessm ent made vide order dated 30.6.1994 was cancelled through order dated 29.6.1998 and that the petitioner did not impugn the same in appeal within the contemplation of Section 134 of the Ordinance with the result that it attained finality. It was also noticed in para 9 of the impugned judgment (see the relevant excerpt in the first paragraph above) that the then learned counsel for the petitioner frankly conceded that the order dated 29.6.1998 had attained finality. The same is the position with regard to the de novo assessment for the year 1993-94 being ordered within a period of 4 years thereof with the result that limitation provided under Section 66(a) of the Ordinance still rules the lis to that extent.
6. We find that the learned counsel for the petitioner cannot wriggle out of the situation created on account of the concession made by the then learned counsel for the petitioner before the learned Judge in Chambers to the effect that order dated 29.6.1998 was appealable under Section 134 of the Ordinance and that the same cannot be challenged now through the writ petition. However, it is not the case of the respondents that the petitioner could not impugn/challenge the orders passed by the respondents after making of order dated 29.6.1998 regarding de novo assessment for the year 1993-94 within the four comers of their jurisdiction under the Ordinance. It is an admitted position that order dated 30.6.1999 passed by respondent No. 1 was challenged by the petitioner before respondent No. 3 in revision under Section 138 of the Ordinance which was dismissed by the latter on 2.11.1999 by disagreeing with the pleas raised before him by the petitioner but the amount of Income Tax was reduced from Rs. 18,30,227/- to Rs. 15,12,469/- lt is not the case of the respondents that the petitioner was not within its rights to impugn the order dated2.11.1999 under Article 199 of the Constitution on available grounds. Further, the learned Judge in Chambers did not non-suit the petitioner by holding that it cannot avail of the remedy under Article 199 of the Constitution against dated 2.11.1999, It was in para 13 of the impugned judgment that order dated 2.11.1999 was commented upon by the learned Judge in Chambers. It was observed that respondent No. 3 disposed of the revision petition before him on 2.11.1999 after thoroughly scanning the matter and allowing permissible concessions to the petitioner: that iswhy the amount of payable tax was reduced fromRs. 18.20.222/- to the tune of Rs. 15.12,469/-. The controversy also involves the disputed questions of fact which cannot be probed into through the instant proceedings." (underlining is for emphasis). This excerpt is in itself sufficient to hold that the learned Judge in Chambers declined to exercise jurisdiction under Article 199 of the Constitution not so much on the ground that the order dated 29.6.1998 had attained finality on account of any inaction on the part of the petitioner but on the ground that resolution of disputed questions of fact cannot be gone ahead in the Constitutional Jurisdiction of the High Court.
7. The matter does not end here. The plea that Sec don 80-D of the Ordinance was not applicable to the case of the petitioner in that it enjoyed any exemption under 2nd Schedule, Part iV, Clause
(14) from the application thereof irrespective of its status, was duly noticed and repelled in the impugned judgment with the observations that the petitioner had failed to bring anything on record "... Which may even suggest that Section 80-D ibid could not be made applicable to the case of the petitioner. The concerned authorities applied the same on a due appreciation of facts and law. Even otherwise, respondent No. 3 while disposing of the revision petition of the petitioner vide his impugned order dated 2.11.1999 has thoroughly scanned the matter and allowed the permissible concessions that is why the amoufit of payable tax was reduced from Rs. 18,20,222A to the tune of Rs. 15,12,469/-. The controversy also involves the disputed questions of fact which cannot be probed into through the instant proceedings". Even at the present stage of the cause here, the above situation remains intact and that too to the disadvantage of the petitioner.
8. Before parting with this matter, it may be observed that the case of Khiali Khan [supra) pressed into service by the learned Law Officer is not attracted to the facts and circumstances of this case.
9. In view of the above discussion, we are of the considered view that no ground for interference with the well- reasoned judgment of the High Court has been made out.
10. Resultantly, the petition is dismissed and leave declined..