1982 PLP 361 (PTD)

NAIMMUDIN, J.‑By this Constitutional Petition under Article 199 of the Islamic Republic of Pakistan, 1973, the petitioner has questioned the legality and validity of the show‑cause notice dated 10‑12‑1979, which reads as follows: "To Haji Kassam Abbas Patel, C/o. U. K. Construction Co., Karachi. Sub : Undervaluation of assets and properties owned/co‑owned suppressions of income during the asset year 1968‑69 to 1978‑

79. Please refer to above. On the basis of valuation of properties owned/co‑owned by you and in view of the information collected from various sources. It has been observed that you have grossly under‑stated the value of the property as under :‑ S.No Particulars of Assets and properties Value Shown Value determined by valuer. Remarks

1. Bungalow No. C/1 Block No 13-D Gulshan-e-Iqbal Karachi Total area 12 Sq.yd. No. Particular field 11,73,240

2. Block-6 Scheme 16, F.B Area Karachi 2,17,200 Shown in the name of Wife Mst Zubeda Bai

3. Bungalow No.B-37 KDA Scheme No.1 Karachi 3,42,918 Total cost and share of 1,49,859 25,91,000 1/3 shares as properties owned by 3 partners.

4. Noor Market 10,27,485 Rs 58,57,000 Block No.1/B, Commercial Area. Karachi. Share in co-owned properties. As evident from the above chart there appears a vast difference in the value of properties shown by you and the value as determined by the valuer, which means that you have suppressed the income which has been diverted and invested in the acquisition/construction of the property now owned by you. As such your total income for the assessment year 1968‑69 to 1978‑79 has been under assessed. You are hereby required to explain why proceedings under section 65 of the Income‑tax Ordinance, 1979 should not be initiated against you for the assessment year 1968‑69 to 1978‑79 as the income has been grossly under assessed as discussed above. Your explanation should reach this office within a week from the receipt of this letter positively. IL case of non‑compliance adverse inference would be drawn and the case would be decided. (M. MUKHTAR AHMED), Income‑tax Officer Contractor Circle II (West), Karachi" We have heard Mr. Ali Ather Advocate for the petitioner and Mr. Nasrullah Awan Advocate for the respondent. It is submitted by Mr. Ali Athar that the notice expresses the intention to reopen the assessment for the years 1968‑69 to 1978‑79 on the ground that the value of four properties mentioned in the notice was under‑declared as compared to value determined by a valuer thereby concealing the income. It is further submitted by Mr. Ali Athar that so far as properties 1 & 2 mentioned in the notice are concerned these do not belong to or owned by the petitioner but the same are owned by his wife, Zubaida Bai, who is herself an assessee and is being regularly assessed in respect of income from these proper ties also. In support of this submission he has relied on the contents of paragraphs 5 (b) (1) (ii) and 7 of the petition wherein the petitioner has stated that the Gulshan House and F. B. Plot belong to and are owned by his wife in which the petitioner has no right, interest and title. He has further stated therein that the petitioner's wife is being assessed for income tax under G. I. R. 2428/FC/KYC and for wealth tax under G I R No. CC. II/ W. T. These averments have not been denied by respondent No. 1 in the comments submitted by him pursuant to the order of the Court dated 31‑12‑1979. In fact in paragraph (vi) and (x) of the comments respondent No. 1 has admitted these facts without any reservation. A perusal of the notice would show that the respondent No. 1 is requiring therein the petitioner to show reause for concealment of income because of under statement of the value of these properties. In our opinion the question of under‑stating the value of these properties by the petitioner did not and could not arise for the petitioner has never and nowhere has claimed that these properties are his. In reply Mr. Awan submitted that the value mentioned in the show cause notice was probable but this submission has no relevancy to the point raised by Mr. Ali Aktar. On being pointed out this Mr. Awan submitted that in view of the averments made in paragraph 5 (b) (i) (ii) and 7 which have been admitted in unequivocal terms in paragraph (vi) and (x) of the comments these properties could not have been included in the notice to the petitioner. It may be necessary to state that the respondents have not filed any counter‑affidavit to the petition. Now, so far as properties Nos. 3 and 4 are concerned it was submitted by Mr. Ali Athar that the assessment in respect of these properties could. not be reopened as the limitation provided under section 34 (2) of the Income tax Act 1922, had already expired several years ago. He further submitted that even if the provisions of section 65 of the Income‑tax Ordinance, 1979 under which notice .was issued are held to be attracted still the assessment could not be re‑opened, being barred by time. Elaborating the submission the learned counsel painted out that under section 65 of the 1979 Ordinance the assessment could not be re‑opened after the expiry of 10 years from the assessment year in which the total income was assessable. He further submitted in relation to third property that so far as the purchase of the land is concerned it is overred in the paragraph 6‑(c) of the petition that the same was purchased in February, 1967 for Rs. 80,000 and the construc tions were made in 1967‑6;. at a cost of Rs. 3,42,980 and they were accordingly disclosed to the Income‑tax Department and are on the assessment record. These averments are also not denied by the respondents in the comments filed. Respondent I has rather specifically admitted them in paragraph (ix) of the comments. It is, therefore, clear that if there was any under‑declara tion of the value and consequent concealment of income it related to the! assessment year 1968.69 and since notice was issued on i0‑12‑1979, it was beyond 10 years from the year of assessment and, therefore, it could not be re‑opened, being barred by time. As regards assessment of fourth property namely, Noor Market, it is claimed in paragraph 6 (a) of the petition that the plot on which this market is situated was purchased by the petitioner and his co‑owners from Princess Abida Sultana in November, 1961 by a Registered Conveyance Deed dated 1‑11‑1961, for a total consideration of Rs. 79,000 and so far as ground and first floor of market are concerned it is claimed in paragraph 6 (b) (i) that they were constructed in the year 1967 and the rental income thereof was for the first time assessed under section 9 of the Income‑tax Act, 1922, for the year 1967‑

68. It is further claimed therein that the rental income is being assessed to income tax thereafter also from year to year. So far as the constructions of the second floor of the market is concerned it is claimed in paragraph 6 (b) (ii) that it was made through Messrs U. K. Constructions Company on the terms and conditions contained in the agreement dated 14‑3‑1975. It is further averred therein that under this agreement Messrs. U. K. Construction Company had to construct the second floor of market entirely at their own costs and after construction had to sell away the flats on that floor to prospective purchasers on ownership basis and had to pay the petitioner and other owners 3 % as commission on the total sale proceeds thereof. It is claimed that the petitioner did not incur any expenditure on the construction of the second floor of the market and these facts have been recorded in the order for assessment year 1976‑77, a photo‑stat copy whereof is annexed to the petition marked as Annexure A. I. All these averments are again specifically admitted in paragraphs (vii) and (viii) of the comments. It is submitted that so far as the purchase of the plot and construction of ground and first, floor ore concerned they relate to assessment years 1967‑68, or prior thereto and, therefore, to that extent the assessment could not be re‑opened, being barred by time. So far as second floor is concerned the position has been explained and which has not been denied or otherwise questioned. In view of the above facts and position we find that there was no jurisdiction or valid reason whatsoever for calling the petitioner to show cause. However, it is submitted by Mr. Awan that the petitioner instead of rushing to this Court should have shown cause for there was alternate remedy available. But we are of the view that since show‑cause notice has been issued without there being any sufficient reason or legal authority w should not decline to exercise on jurisdiction. The availability of alternate remedy in every case is not a ground to refuse the relief when the remedy is not efficacious, for, if in spite of showing cause any additional amount had been assessed the same could have been recovered through coercive process, on petitioners failure to pay the same. It may be advantageous, if we here refer to some precedents where the petitions were entertained notwithstanding the availability of alternate remedy. These are : (1) Nawabzada Muhammad Ali Khan v. Controller of Estate Duty and others P L D 1961 S C 119. (2) Burmah Oil Company (Pakistan Trading) v. The Trustees of the Port of Ghittagong P L D 1962 S C 113, (3) Pakistan and another v. Qazi Ziauddin P L D 1962 S C 440. (4) Nagina Silk Mills Lyallpur v. The Income‑tax Officer. A‑ Ward. Lyallpur and another P L D 1963 S C 322. (5) Syed Ali Abbas and others v. Vishan Singh and others P L D 1967 S C 294. (6) Abdul Ghani and another v. Government of Pakistan and others P L D 1968 S C 131 (7) Messrs Usmania Glass Sheet Factory Ltd., Chittagong v. Sales Tax Officer, Chittagong P L D 1971 S C 125), and (8) The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and others P L D 1972 S C

279. In Burmah Oil Company's case it was observed by Waheeduddin Ahmed, J. at page 118 of the report as follows :‑ "We consider that since the question which arose was one of fiscal right based upon a statutory instrument, it was as easily and conveni ently determinable in a writ petition as by means of a suit. By the exempting notification, a duty was cast upon the taxing authority viz. the Port Trustees to relieve the subject against certain imposition and thereby a corresponding right to such relief was created in favour of the subject. Mandamus is in every way an appropriate remedy for the assertion of such a right by enforcement of the corresponding duty." In Pakistan and another v. Qazi Ziauddin, Kaikaus, J. at page 449 observed :‑ "But there is even a stronger reason why the objection should be repelled. In the very case which has been relied upon by the learned Attorney General, that is, Messrs Haroon and others v. The Collector of Customs, Karachi and another (P L D 1959 S C (Pak.) 177), it had been held that the failure to appeal against the order of the Collector was not necessarily a bar to the filing of a petition for certiorari for the objection as to there being an alternative remedy was not of such weight in the case of certiorari as it was in the case of mandamus, and if there was either absence or excess of jurisdiction or the impugned order suffered from illegality on the face of the record a certiorari could be granted even though the remedy by way of appeal had not been availed of." In the case of Syed Abbas Ali it was observed by Cornelius, C. J. at page 298 of the report as follows :‑ "There had been in the relevant respect an excess of jurisdiction, and the affected party could not be penalised for not throwing themselves again on the mercy of the authorities who were responsible for such excess." Similarly in Abdul Ghani's case it was held by Fazle‑Akbar at page 139 of the report as follows ‑‑ "Anything done beyond or in excess of power conferred by statute can be brought within the power of avoidance vested in the High Court. In such a case, the High Court can examine if the officer concerned has acted in accordance with the powers conferred upon him by the statute," In Messrs Usmania Glass Sheet Factory Limited, Chittagong v. Sales Tax Officer, Chittagong, the facts as reported were:‑ " . . . The appellant filed 14 revised Returns on the 20th of March, 1965 and claimed therein that glass‑sheet was exempted from the payment of sales tax. On the 31st March 1965, the Sales Tax Officer called upon the appellant to submit its explanation by the 8th April 1965 failing which action was to be taken to realise the arrears of sales tax on the basis of Returns filed previously. The appellant submitted its explanation on the 1st April, 1965. This explanation was rejected by the Central Board of Revenue on the 11th June, 1965. The Central Government also agreed with the Central Board of Revenue. Sales Tax Officer rejected the claim of the appellant on the 22nd June, 1965 and called upon it to pay all the arrears of sales tax within June, 1965." On these facts it was claimed that the petition was liable to be dismissed as the case against the petitioner was premature and the appellant should have pursued the legal remedy provided in the Sales Tax for appeal and Revision to higher authorities. However, Waheeduddin Ahmad, J. who delivered the opinion of the Court at page 209 of the report observed as follows .‑‑ "it cannot therefore, be said that the writ petition was premature or the appellant had no cause of action against the respondent to ventilate its grievance against him. The objection of the respondent that the appellant had alternative remedies by departmental means is also not of much substance. It has been held by this Court that in a case where the dispute arises between the parties in respect of a fiscal right based upon a statutory instrument' the same can be easily determined in writ jurisdiction." In the last named case Salahuddin Ahmed, J. observed at page 287 of the report as follows :‑ "If it had succeeded in establishing that the impugned acquisition was ultra vires the Ordinance, its appeal under section 36 would have been in exercise in futility. It was held by the Supreme Court in Lt.‑Col. Nawabzada Muhammad Amir Khan v. Controller of Estate Duty and others (P L D 1961 S C 119) that the rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction, It was further observed that one of the well‑recognised exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority." The appellant has also alleged mala fide in law against the C. D. A. a statutory functionary. In the case of East and West Steamship Co. v. Pakistan (P L D 1958 S C (Pak.) 41) this Court has held that where a Statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has power to grant relief to the aggrieved party. The learned Judge of the High Court has correctly dealt with this aspect of the question." The objection has therefore, no force. Consequently, we declare that the notice issued is without lawful authority and is therefore, of no legal effect. Since the petitioner instead of showing cause has directly come to this Court, we make no order as to costs. Petition accepted.