1968 PLP 395 (PTD)

SALAHUDDIN AHMED, J.- In this Rule the petitioner has challenged the legality of certain notices issued to him by respon dent No. 1 under sections 23 (2) and 28 (3) of the Income-tax Act. It is the petitioner's case that he was normally assessable in Circle A. Dacca which was under the Commissioner of Income tax appointed area-wise under the Income-tax Act. Subsequently it transpired that his cases had been transferred to respondent No. 1 who is income-tax Officer, Investigation Circle I, Dacca and who is under respondent No. 2 Commissioner of Income-tax, Investigation Circle, Respondent No. 1 having obtained seisin of the cases of the petitioner issued three notices which are Annexures `A', `B' and `C' to the petition all dated 28-9-63 asking the petitioner for certain information and explanation and directing him to show cause why penalty under section 28 of the Income-tax Act should not be imposed on him on certain grounds. It has been further stated that on the date, namely, 28-9-63 when respondent No. 1 issued the impugned notices, he was not competent to do so inasmuch as he had already been transferred as Income-tax Officer, Company Circle I, Dacca under a different Commissioner. Respondent No. 1 Muhammad Ali Nawab has sworn and put in on affidavit-in-opposition dated the 13th day of November 1963 controverting the allegations made against him. The respondent has categorically asserted that he has been working as Income-tax Officer (Investigation) Circle I, Dacca. The respondent has asserted that he has obtained seisin of the petitioner's case in accordance with the orders of the Commis sioner of Income-tax (Investigation), Karachi, who has been invested by the Central Board of Revenue with the jurisdiction in respect of the assessment cases of the petitioner. It is stated further that when by reason of the decision of this Court in Writ Petition No. 8 of 1963 in the case of Shaikh Naseem Anwar v. The Income-tax Officer, Investigation Area and another (P L D 1964 Dacca 304) the said order transferring jurisdiction to the Commissioner of Income-tax (Investigation), Karachi was held invalid, the Central Board of Revenue reassigned the jurisdiction by their order dated 28-3-63 and again when section 5 of the Income-tax Act was amended by the Finance Act of 1963, the Central Board of Revenue again passed a fresh order dated 11-7-63 assigning several cases including the cases of the petitioner to respondent No. 2 and respondent No. 2 in his turn by his order dated 12-7-63 assigned the cases of the petitioner to respondent No. 1 the relevant orders of the Central Board of Revenue as well as the Commissioner of Income-tax, Karachi have been annexed to the affidavit in support of this statement. On behalf of the petitioner it has been contended before us that inasmuch' as respondent No. 1 had already been transferred as Income-tax Officer, companies Circle 1, Dacca, he had no authority to issue the three impugned notices, namely, Annexures `A', `B' and `C' to the petition all dated the 28-9-63. In support of this contention Notification No. E-1 (INV) 1963, dated 23-8-1963 appearing at page 107 of the Journal "Taxation" Vol. 8 (1963) has been produced which reads as follows:- "In pursuance of the Central Board of Revenue's letter C. No. 92 (1)-AIR/I/63, dated the 8th August 1963, regarding the transfer of Income-tax Officers, the services of the following officers of the Income-tax (Investigation) Department are placed at the disposal of the Commissioner of Income-tax, East Pakistan, Dacca, with immediate effect:-

1. Mr. M. A. Nawab, P. T. S., Income-tax Officer (Investi gation), Circle I, Dacca.

2. Mr. Muhammad Naseem Ahmad P. T. S., Income-tax Officer (Investigation), Circle 1, Karachi (who is on leave with effect from the forenoon of the 15th July 1963." The learned Advocate appearing on behalf of the respondents has on the contrary submitted that although orders were passed placing the services of respondent No. 1 at the disposal of the Commissioner, Income-tax, Dacca with immediate effect, respon dent No. 1 continued to act as Income-tax Officer (Investigation), Circle I, Dacca and that it was in such capacity that he issued the three impugned notices on the 28-9-63. In support of this contention the learned Advocate has produced before us an attested copy of the certificate of transfer of charge to show that respondent No. 1 made over charge of the office of Income-tax Officer (Investigation), Circle 1, Dacca to his successor Mr. M. A. H. Khan only on the 6th day of December 1963. This certificate has been shown to the learned Advocate on behalf of the petitioner. It is, therefore, evident that respondent No. 1 was acting as the Income-tax Officer (Investigation), Circle I, Dacca on the 28-9-63 when he issued the three impugned notices. Respondent No. 1 has asserted this fact in his affidavit -in-opposition and we fully accept the statement, particularly, when it is supported by the attested copy of the certificate of transfer of charge produced before us and has now been kept on record. We, therefore, do not think there is any substance in this contention. It has next been contended that the petitioner was not given any opportunity to cross-examine the witnesses who had furnished the respondents with materials against the petitioner on the basis of which the impugned notices were issued. There is no subst ance in this contention either. In Annexure "A" the petitioner was given adequate details of the sources from where materials against the petitioner were obtained and the petitioner was given full opportunity to appear before respondent No. 1 and to controvert the materials set out against him in the said notices. Under no provision of law or principle of natural justice was it incumbent upon the authority to ask the petitioner to be present at the time when they were obtaining materials against the petitioner. The authorities are at perfect liberty to obtain materials against the petitioner from whatever source they can do so. All that is required is that the petitioner must be given an adequate opportunity to controvert those materials and this has been given in this case. Although several other grounds were taken in the petition they were not urged before us in view of the fact that they were all covered by previous decisions of this Court. For the reasons stated above, this Rule is discharged without any order as to costs. A. H. KHAN, J.- I agree. S. Q. Rule discharged.