2001 PLP 1548 (PTD)

Through this Constitutional petition a prayer has been made to strike down the order passed by respondent No.l Commissioner of Income Tax Zone‑C, Lahore recorded on 31‑8‑1995 under section 138 of the Income Tax Ordinance, 1979.

2. The petitioner is an individual and derives income from an Ice Factory situated at Bucheke District Sheikhupura. As against returned income at Rs.1,03,623 for the assessment year 1994‑95, total income for the year was computed at Rs.4;84,

418. Earlier his case was selected for total audit through computerised Random Ballot.

3. On framing of the aforesaid assessment on 29‑5‑1995 the petitioner approached respondent No.l in revisional jurisdiction assailing framing of assessment without issuing of notice under section 62, insufficiency of meltage allowance and excessive application of G. P. rate at 55% . The revisional authority after hearing the petitioner refused to interfere. According to the petitioner a number of questions of law as detailed in para. 1 of the petition have arisen out of the said order of the revisional authority.

4. After hearing the learned counsel for the petitioner I am not t persuaded to entertain the petition. The jurisdiction of respondent No. 1 to decide the revision petition filed by the present petitioner is not denied. The aforesaid alleged questions of law cannot be ruled upon in exercise of Constitutional jurisdiction against a revisional order merely for the reason that the petitioner has no further remedy available to him against such order. All the grounds taken in the petition and the alleged questions of law are germane only to either the appellate or reference jurisdiction of this Court under section 136 of the Income Tax Ordinance, 1979. These issues need to be ruled upon in the perspective of the assessment order and the revisional order. However, that again is not possible in exercise of Constitutional jurisdiction. The petitioner had two sets of remedies available to him. One was on judicial side which included first appeal to the Additional Commissioner (Appeals) and second appeal to the Income‑tax Appellate Tribunal. Then a reference to this Court was also available to him. Finally an appeal to .the Hon'ble Supreme 'Court of Pakistan lay, against the order recorded by this Court on reference. On the administrative side, an assessee had 'a choice to approach the Commissioner in revisional jurisdiction under section 138 of the Income Tax Ordinance. The petitioner having opted for the administrative remedy he cannot be permitted to make up his failure to approach the judicial forum. All the more so when this Court includes one of them. In Constitutional jurisdiction it is only a jurisdictional defect which can be looked into. Being extraordinary remedy, it cannot be given a colour of an appeal or revision or reference against the judgments of Revenue Authorities or Tribunals of special jurisdiction.

5. Learned counsel for the petitioner has relied upon re: Faqir Muhammad v. Nawab Bibi and another (1988 MLD 695) to claim that a Constitutional petition is maintainable where no alternate remedy is available against revisional order which had become final. The issue with regard to competency of Constitutional petition is not a moot point. The moot point is the ground on which a Constitutional petition is entertainable. As remarked. earlier a Constitutional petition will certainly be maintainable against a revisional order which has become final if there is an objection to the exercise of revisional jurisdiction by the concerned authority. A jurisdictional fact has number of dimensions and a Constitutional petition will be maintainable if any of them can be brought home successfully. However, mere fact that the petitioner has no remedy available against a particular order will not per se attract the exercise of Constitutional jurisdiction under Article 199 of the Constitution. The Hon'ble Supreme Court of Pakistan in re: Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal (PLD 1987 SC 447) certainly found that a Tribunal when goes wrong in law it goes outside the jurisdiction. However, in the case in hand learned counsel has not been able to establish as to how the revising authority went wrong in law. Mere fact that the claim of the C petitioner qua lack of notice or application of a higher G.P. Rate or allowing a low meltage was not accepted by the authority cannot amount to going wrong in law.

6. In re: Haidri Textile Mills v. The State Bank of Pakistan (1386 CLC 2197), this Court held that if there was a jurisdiction to decide a particular matter merely because a decision was erroneous would not render the same to be without jurisdiction. Obviously if every, erroneous decision can be a D subject‑matter of Constitutional jurisdiction then a right of appeal, revision or review provided for in every statute will have to be read alongwith the provisions of Article 199 of the Constitution. The scheme of the Constitution as well as the contours of laws providing for an approach to a higher forum do not permit such an interpretation to be accepted.

7. The revision filed by the petitioner was properly entertained and decided in the light of the various judgments of the superior Courts. Therefore, there hardly appears a single good reason for interference in Constitutional jurisdiction.

8. Dismissed. M.B.A./B‑32/L Petition dismissed.