1997 PLP 7 (PTD)

JAWAID NAWAZ KHAN GANDAPUR, J.

The petitioner namely Haji Gula Khan, has alleged that the property known as "Sarhad Hotel Market", situated inside Dabgari Gate, Peshawar was jointly owned by him, Said Anwar, Jehanzeb Khan and Hamayun Khan. Through a family settlement the property in question was partitioned on 29-7-1989. Later, when a dispute arose between him and the other co-owners, the matter was referred to Arbitrators who gave their arbitration award. Vide the said award the family settlement was confirmed. Accordingly a suit was filed in the Court of Civil Judge, who not only accepted the partition deed, dated 29-7-1989 but also the arbitration award, dated 17-4-1989 and hence declared that the property stood partitioned with effect from 29-7-1989 and that M/s. Said Anwar, Jehanzeb Khan and Hamayun Khan had become owners of specific shares of the property. The name of the petitioner was, therefore, deleted from its ownership. The petitioner further alleged that he is an existing assessee of income-tax and wealth tax and have been filing return in this respect regularly under the relevant provisions of law. Accordingly he and the other owners filed a statutory return under the Income Tax Ordinance, 1979 and the Wealth Tax Act, 1963 in their individual capacities. Respondent No. 1 did not accept the declaration filed by the petitioner and thus made assessment, under the Ordinance/Act, in respect of the years 1990-91 and 1991-92, and assessed net wealth of Rs.38,70,000 and 36,000 respectively.

2. Aggrieved by the said assessment the petitioner filed Appeals Nos. 1347 and 1348 on 26-9-1989 before respondent No.

3. After hearing the appeals on 12-12-1995, respondent No.3 by his order, dated 28-12-1995 accepted the plea of the petitioner arid held that the documentary evidence available on the file fully supported the contention of the petitioner. He, therefore, ordered that the petitioner's version claiming the status of an individual be accepted and accordingly the status recorded by respondent NO. I was declared to be illegal and the order passed by him was set aside. Respondent NO. I was further directed that for the assessment year 1991-92 individual wealth tax return be obtained and processed in accordance with law.

3. The, petitioner further alleged that during the pendency of his appeal before respondent No.3, respondent No. l initiated further proceedings, in respect of the Assessment years 1992-93 and 1993-94 qua the petitioner. During the course of the said proceedings it was brought to the notice of respondent No. 1 that he was bound to act in accordance with the findings/directions of respondent No.3 and to assign the status of individual to the petitioners while making the assessment. Respondent No.1 did not agree with the contention of the petitioner by saying that since the Department has already challenged the verdict of respondent No.3, therefore, the said order was not final and he was not bound by the same. He further informed the petitioner that the assessment was to be made on the previous history of the case. The petitioner further alleged that respondent No. l by not following the decision/direction of respondent No.3, has committed grave illegality in making the assessment for the years 1992-93 and 1993-94 on the basis of previous history, has travelled beyond his jurisdiction and, therefore, his action is without lawful authority and as such illegal and of no legal effect.

4. It may be stated at the very outset that the petitioner can file an appeal before respondent No.3 against the impugned order recorded by respondent No.l. As an adequate remedy has been made available to the petitioner under the relevant law, therefore, he cannot be allowed to bypass the same and approach this Court straightaway under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. We are, therefore, of the view that this writ petition is misconceived. The same is dismissed in limine. M.B.A./2069/T ?????????????????????????????????????????????????????????????????????? Petition dismissed.