P L D 1975 Lahore 452 (PLP)

This judgment will dispose of Writ Petitions Nos. 566, `67 and 568 of 1972 filed by three different partners of a firm, challenging the orders of the Income-tax Appellate Tribunal dated 17th September 1971, the order of the Income-tax Officer dated 23rd January 1971, by which they were assessed for the assessment year 1969-70 and the subsequent appellate orders passed by the Appellate Assistant Commissioner dated 29th May 1971.

2. Brief facts of the case are that the petitioners, who are partners of the firm Messrs Ghulam Hassan Ghulam Rasool were served with a demand notice by the Income-tax Officer on 29th January 1971. This is said to have been served on one Allah Rakha, Accountant of the Firm. The appeals against the three orders of the Income-tax Officer were separately filed by the petitioners before the Appellate Assistant Commissioner on 9th March 1971, which were dismissed by his order dated 29th May 1971. He held all the appeals barred by time as the demand notice was served on 29th January 1971, and the appeals were filed on 9th March 1971. The authorised representative of the petitioners has not been able to give any cogent reasons for late filing of the appeals.

3. The petitioners then filed separate appeals before the Income-tax Appellate Tribunal of Pakistan. All the three appeals were dismissed by separate orders on 17th September 1971. The Tribunal held that the delay in filing appeals before the Appellate Assistant Commissioner remained unexplained and the Appellate Assistant Commissioner rightly refused to interfere with the orders of assessment.

4. Each one of the petitioners had shown an income of Rs. 30,915 as dividend received from Rauf Textile and Printing Mills Limited, Karachi. But at the time of assessment they claimed exemption of this income being dividend of the Company which was exempt from payment of tax under section 15-BB of the Income-tax Act. The Income-tax Officer did not agree with the submission made and assessed the petitioners on their entire income. Mr. Javaid Hashmi, learned counsel for the petitioners relying on a judgment of this Court Commissioner of Income-tax v. Mubarak Ahmad P L D 1972 Lah. 787 argued that this income of the assessee was not taxable. The Division Bench decided the case on 12th May 1972. Reliance was placed on Commissioners of Income-tax v. E. Y. Miller P L D 1959 S C (Pak.) 219, but the case is distinguishable as the dividend in that case was exempt from income-tax since it was an agricultural income from a Company which was carrying on agriculture and distributed the dividend. He submitted that since there was error apparent on the face of the record in the orders of assessment of Income-tax Officer in view of the interpretation of section IS-BB by a Division Bench of this Court the orders suffer from illegality arid have to be quashed. Reliance was placed on Nagina Silk Mills v. income-tax Officer P L D 1963 S C 222, M/s. Usmania Glass Sheet Factory v. Sales Tax Officer P L D 1971 S C 205 and Permier Cloth Mills Ltd v. Sales Tax Officer 1972 S C M R

257. There is no dispute about the dictum laid down by their Lordships in these cases for moving this Court under Article 199 of the new Constitution in income-tax matters. Reliance was placed on Bennett & White (Calgary) Ltd. v. Municipal District of Sugar City No. 5 P L D 1951 P C 78 and Provincial Government of Madras v. J. S. Basappa A I R 1964 S C 1873 and learned counsel submitted that the assessment should be set aside as a whole since it included certain amount which is not taxable. Both the above cases are obviously distinguishable from the facts of the instant case, for, the amount of dividend received from the Company, exempt under the Income-tax provisions, is specifically mentioned in each case. He also relied on Yousaf Ali v. Muhammad Aslam Zia P L D 1958 S C (Pak.) 104 and argued that since the basic orders of assessment were illegal the entire superstructure thereon falls to the ground.

5. Sh. Abdul Haq learned counsel for the respondents submitted that the orders passed by the Income-tax Authorities were perfectly within jurisdiction and such orders are unexceptionable except by way of reference under section 66 of the Income-tax Act. He cited Sisic Kumar Das Purkayastha v. State of Assam and others (1957) 8 S T C 416 a case from Indian jurisdiction in support of his submission. It was held therein:- "Where an assessee did not appeal or go in revision against an order of assessment, he would not be entitled, in an application under Article 226 of the Constitution filed after the lapse of two years, to an order quashing the assessment on the ground that the assess?ment was ultra vires and not warranted by the provisions of Sales Tax Act." He further submitted that in the instant case the Income-tax Officer assessed the income of the assessees in accordance with the law prevalent at that time and the petitioners did not give any sufficient cause for late filing of their appeals before the Appellate Assistant Commissioner. He, therefore, rightly dismissed them. The Tribunal also looked into this aspect of the case and came to the conclusion that no explanation or sufficient cause for not filing the appeals in time was furnished before the Appellate Assistant Commissioner and, therefore, he rightly dismissed the appeals. 'The orders of the Tribunal cannot, therefore, be called orders without lawful authority. The Division Bench judgment Commissioner of Income-tax v. Mubarak Ahmad cited by Mr. Javaid Hashmii was the law declared by this Court on 12th May 1972. The Income-tax Officer assessed the petitioners long before the dictum of this Court and rightly held that the assessees could not be exempted from their liability to pay income-tax on their income received from the dividend of a Company the income of which was exempt under section 15-BB of the Income-tax Act. This matter was not looked into by the Appellate Assistant Commissioner on account of the appeals being barred by time and also by the Tribunal for similar reasons.

6. After hearing the illustrious arguments by both the learned counsel for the parties and going through the case-law cited at the bar I am of the opinion that the petitioners have not succeeded in bringing their petitions within the ambit of Article 199 of the Constitution. Each one of the orders passed by the authorities in the hierarchy of the Income-tax Department is perfectly within their jurisdiction and in accordance with law.

7. For the foregoing reasons all the three writ petitions fail and are dismissed leaving the parties to bear their own costs. K. B. A.???????????????????????????????????????????? Petitions dismissed.