1989 PLP 1241 (PTD)

AJMAL MIAN, CJ.--This petition is directed against the order dated nil, though mentioned in the comments as dated 6-6-1979, passed by the Income -tax Officer, Circle Additional "Z" West Zone, Karachi, assessing the petitioner's income for the assessment year 1976-77 and raising a demand of. Rs. 1,59,

000. Against the above order the petitioner filed a revision, which was dismissed by an order dated 7-2-1981. After that the petitioner filed the present petition after ten months from the date of dismissal of the revision.

2. In support of the above petition Mr. Gul Zaman Khan, learned counsel for the petitioner, has vehemently contended that the impugned order dated 6-6-1979 was passed by the Income-Tax Officer; without serving any notice under Sections 22 and 23 of the Income-tax Act, 1922 (hereinafter referred to as the Act) and therefore, the order is without jurisdiction.

3. On the other hand Mr. Choudhry Mohammad Iqbal, learned counsel appearing for the respondent, has contended that the question, whether any notice was served or not, is a question of fact, which should have been first agitated before the forums provided under the Act and not directly before this Court in a Constitutional Petition.

4. Mr. Gul Zaman Khan in furtherance of his above submission, has invited our attention to the order dated 13-5-1982 passed by the bench which admitted the above petition in which reference was made to the comments to the effect that the notices were missing from the file of the Income-tax Department.

5. In our view, the questions, whether factually the notices were issued and whether they were served and whether thereafter they were misplaced or they were not served, all are disputed questions of fact, which could have been conveniently adjudicated upon by the forums provided under the Act. The present petition was filed after the expiry of more than 10 months from the revisional order dated 7-2-19.81. It is not known as to why the petitioner did not file an appeal and why he did not avail of the other remedies provided under the Act including appeal before the Income-tax Tribunal and a reference to this Court. Then it was contended by Mi. Gul Zaman Khan that since more than six years have expired after the filing of the above petition, it would not be possible for the petitioner to avail of the remedy under the Act.

6. It will suffice to observe that if the petitioner can make out a case for condonation of delay under the relevant provisions, he may approach the competent forum we cannot examine the above disputed questions of fact directly in constitutional petition. The petition is, therefore, dismissed with no order as to costs. M.Z.S./N-219/K Petition dismissed.