2001 PT D 1150 (PLP)

MALIK MUHAMMAD QAYYUM, J.

The only question which falls for determination in this petition is as to whether in those cases in which the order is appealable in the hierarchy under the Income Tax Ordinance, 1979, revision under section 138 of the Income Tax Ordinance, 1979, was competent.

2. It has been brought to our notice that a learned Judge of this Court in W.P. No. 26156 of 1998, has taken a view that in such cases the revision would not lie.

3. Learned counsel for the petitioner has submitted that there was nothing in the Income Tax Ordinance, 1979, which takes away the right of revision in appealable cases and as such no restriction could have been placed on the right of the affected person to file a revision even in cases where appeal lies. This contention of the learned counsel .for the petitioner has force: It is evident from the bare reading of section 138 of the Income Tax Ordinance, 1979, that it lays down no condition for the exercise of revisional jurisdiction and it reads as under:

"Revision by Commissioner.

(1) The Commissioner may, either of his own motion or on an application made by the assessee for revision, call for the record of any proceeding under this Ordinance in which an order has been passed by any authority subordinate to him and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Ordinance, may pass such order thereon, not being an order prejudicial to the assessee, as he thinks fit."

4. As already mentioned there is nothing in the aforesaid provision expressed or implied that the power of revision would not be available in appealable cases. As a matter of fact, it is for an aggrieved person to decide whether he would like to file a revision or invoke the appellate jurisdiction of the higher Income-tax Authorities. We are strengthened in our view by the comparison of section 115 of C.P.C. with section 138 of the Income Tax Ordinance, 1979. The relevant provision of section 115, C.P.C, reads as under:

Section 115.

(1) The High Court may call.for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears

(a) to have exercised a jurisdiction not vested in it by law; or. (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit." It may be stated that while interpreting section 115 of C.P.C., the Supreme Court has laid down that even in those cases where the appeal is allowed, the revisional remedy may be invoked in special circumstances. See Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678.

5. This petition stands disposed of in the above terms. M.B.A./M-478/L Order accordingly.