1984 PLP 122 (PTD)

AJMAL MIAN, J.‑The petitioners have impugned orders passed under section 46 (1) of the Income‑tax Act by respondent No. 2 imposing penalty at the rate of 10 % under the above section for non‑payment of the tax amount payable under M. L. R. 32.

2. In support of the above petition, it has been contended by Mr. Muhammad Naseem learned counsel for the petitioners that section 46(1) of the Income‑tax Act can be pressed into service only in respect or income-tax payable under the Income‑tax Act and not payable under IA. L. R. 32 in the absence of a statutory provision making the above section applicable. The reliance has been placed on the case of Commissioner f Income‑tax, Lahore v. Aziz Din (1976) 33 Taxation 258 and the case of Commissioner of Income‑tax, Rawalpindi Zone, Rawalpindi v. Mst. Mahmood Sultana (2). In the first case a Division Bench of the Lahore High Court while deciding the question in an Income‑tax reference, as to whether subsection (1) of section 46 could be made applic able in respect of income‑tax payable under the provisions of the 'previous M. L. Rs. 43148 held that subsection (1) of section 46 was not applicable. In the second case a Division Bench of the Lahore High Court again deciding an Income‑tax Reference took the view that subsection (1) of section 46 can not be pressed into service if the income‑tax amount is payable under M. L. R. 32 in question. A Division Bench of this Court in Constitutional Petition No. 580/74, decided on 13‑10‑1982 took the same view, namely Messrs Souvenir Tobacco. Co. Ltd. v. Income‑tax Officer P L D 1978 Lah. 242 Companies Circle XIII, Karachi 1983 P T D,41.

3. Mr. Awan learned counsel for the respondents was unable to cite any case, in which a contrary view aright have been taken by any superior Court. However,, we may observe that the appropriate remedy for the petitioners was to tile a departmental appeal etc. In the above two mho cases the High Coup bad decided the two Income‑tax references and no writ petitions. But in the Karachi case the subject‑matter was a Constitutional petition, which was allowed. Since this petition was filed in 1997 and no sucks objection was raised by the respondents in a counter‑affidavit or otherwise. As a matter of fact no counter‑affidavit has beets filed and as the above orders seem to be without jurisdiction, we do not wish to non-suit the petitioner on this ground at this stage We, therefore, allow the above petition and declare the impugned orders as without lawful authority and of no legal effort. Respondents are restrained froth enforcing the same. M. Z. M. Petition allowed