1990 PLP 1 (PTD)

WAJIHUDDIN AHMED, J.‑‑Petitioners challenge the order of re assessment, dated 10‑6‑1984, for the assessment year 1972‑73, to be illegal and without jurisdiction, as allegedly, notice under section 65 of the Income‑tax Ordinance dated 8‑6‑1983 for re‑assessment of the case on grounds of under assessment and escaped assessment was incompetent and void.

2. It is an admitted position that the petitioners, in addition to the filing of this petition on 16‑8.1984, also preferred an appeal.

3. At the time when this petition came up for hearing Mr. Shaikh Haider, learned counsel for the Department, placed on record the order dated 16‑10‑1986 of the Commissioner of Income‑tax (Appeals) Zone 1, Karachi, whereby, in exercise of appellate powers, petitioners' re‑assessment for the year 1972‑73 has been set aside. Contending that a further appeal has been taken, this time by the Department, to the Income‑tax Appellate Tribunal, Mr. Ali Athar insists for an order in this petition on merits. Conceding to the current dicta on the subject, it is not denied by Mr, Shaikh Haider that the order of re‑assessment was bad as the period of time within which the same could by made under section 34 of the Income‑tax Act, 1922, namely, a period of two years from the end of the relevant year had long since expired and vested rights having been created the fresh time limit of 10 years, as envisaged under the corresponding provisions of section 65 of the Income‑tax Ordinance 1979 would have no application. However, learned counsel for the Department urges that, as of now, there is no subs1sting contravening notice under section 65 of the Income‑tax Ordinance nor any order of re‑assessment which can be questioned or declared to be unlawful in this Constitution petition, the same having merged in the order in appeal. As such, this petition, according to him, merits dismissal, having become infructuous.

4. On the other hand, Mr. Ali Athar maintains that the notice under section 65 ibid. being bad for want of jurisdiction and the order of re‑assessment, on such basis, being equally so, the matter had re‑opened, in spite of favourable orders for the petitioners in appeal as the Department had resorted to a further right of appeal and the proceedings, as a result, became pending again. Due remedy, in this view of the matter, is available in constitutional jurisdiction.

5. It is to be noted that the remedy under Article 199 of the Constitution, as envisaged in the opening words of clause (1) of that Article is available only where the High Court "is satisfied that no other adequate remedy is provided by law, It is no longer a rule whereunder a High Court regulates its procedure or a case of self‑ imposed restriction on the exercise of jurisdiction under Article 199 of the Constitution but a positive pre‑condition about which, before the exercise of power under Article 199, a satisfaction is to be reached to such effect. It is, no doubt, possible that even though there may be an alternative remedy such remedy is not adequate, meaning thereby equally efficacious or readily available. It is also conceivable that where an order is entirely without jurisdiction, colourable or involves flagrant injustice no remedy under a subordinate legislation can be adequate. Likewise, under clause (2) of Article 199 no remedy, irrespective of its efficacy or adequacy, under a subordinate legislation can take away the jurisdiction of a High Court for the enforcement of any of the Fundamental Rights. In such matters the rule that no amount of consent can confer jurisdiction where it does not subs1st would apply and the availability or absence of an alternative remedy would be immaterial. It is in such leases that even a mere notice can give rise to invocation of the constitutional jurisdiction.

6. However, the situation gets materially altered when a notice, even though illegal, is issued pursuant to the provisions of a valid legislation, is responded to in the very jurisdiction from which it originated, and is permitted to result in a quasi‑judicial or an admin1strative order based thereon. Then, on the one hand, constitutional jurisdiction is invoked and, on the other, appellate remedy under statute is also pursued. In such a case, petitioner by its own conduct acknowledges the availability of an alternative remedy. Whether such a remedy was adequate or otherwise, as contemplated in Article 199 of the Constitution, is then to be seen. If it is not adequate inter alia, within the meanings above observed, constitutional remedies are still available and may be pursued. However, the issue is clinched in favour of ouster when it is shown that such remedy has actually succeeded leaving no immediate prospect of detriment. In such a situation, it can hardly be argued that the remedy was not adequate. As a necessary consequence the remedy under Article 199 of the Constitution can only be held to have become infructuous, because the High Court in such a background cannot conclude that it is not satisfied of the existence of an adequate alternative remedy.

7. In this case Mr. Shaikh Haider has correctly pointed out that the impugned notice and the order of re‑assessment stand merged in the order in appeal in relation to which petitioner has no grievance. We cannot hold otherwise.

8. It still remains to be seen as to what will be the effect of the further appeal in the matter taken by the Department to the Appellate Tribunal. We are not required to determine that question here. If the petitioners were aggrieved by the mere preferring of such a further appeal they could have sought amendment of this petition assailing such persuit, as well, having come about while this petition was pending. This they have not done. On the present format no relief can be granted.

9. Nonetheless, it has been urged by Mr. Ali Athar and not questioned by Mr. Shaikh Haider that the notice and re‑assessment impugned in these proceedings were unlawful and bad and that a vested right had come into being .on the expiry of the period prescribed by section 34 of the Income‑tax Act, 1922, and that the corresponding provisions in section 65 of the income‑tax Ordinance, though enlarging the period for re‑opening of a case, on grounds mentioned therein, cannot be held to take away such vested and accrued rights. While holding that this petition has become infructuous in view of what is said above, we would consider it in the interest of justice to record an observation that the referred notice and re‑assessment were illegal and bad and that the Appellate Tribunal would take up and dispose of the appeal, pending before it, within 3 months according to law and in consonance with the decision of this Court in the case of the Bank of America v. The Income‑tax Officer in Constitution Petition N. 370/75 to which one of us namely, Saleem Akhtar J, was a party. M.B.A./N‑229/K Order accordingly.