1997 PLP 40 (PTD)

The petitioner, Riasat Tufail, Proprietor M/s. Zam Zam Traders, Raza Abad, Faisalabad through this writ petition under section 199 of the Constitution seeks that the notices issued under section 65 of Income Tax Ordinance, 1979 for the Assessment years 1991-92 and 1992-93 be declared having been issued without, lawful authority and having no legal effect.

2. Briefly facts out of which the petition arises are that the petitioner being proprietor of the said concern, filed his total income for the Assessment years 1991-92 and 1992-93 at Rs.96,100 and 96,200 respectively, which were accepted under section 59(1) of the Income Tax Ordinance, 1979 being qualified for Self-Assessment Scheme. On 1-3-1995, the respondent issued notices under section 65 of the 'Ordinance for the aforementioned assessment years on the ground that the income had been under-assessed and he intended to reassess the said income for the said years; the petitioner in response to said notices filed returns of total income for the said years 'as before'.

3. The respondent issued mandatory notice under section 62 of the Ordinance wherein stated the reasons for reassessment on the positive information being in his possession; that the petitioner had also earned from export business in the name and style of Mst. Raheela Tufail, proprietor M/s Zam Zam Weaving and Processing Mills, Faisalabad and got it assessed separately in the name of his wife Mst. Raheela Tufail at another Tax No.0799995; as it revealed during inquiries that the export proceeds in the case of M/s. Zam Zam Weaving and Processing Mills, Faisalabad had been credited in the Bank Accounts No. 3330 with Emirates Bank International Limited and 6785 with UBL, Kachehry Bazar, Faisalabad and A/C No. 6040 with U.B.L., Bank Square, Faisalabad maintained and operated by the petitioner in the capacity of as sole proprietor of Zam Zam Weaving and Processing Mills, Faisalabad, hence this petition.

4. The learned counsel for the petitioner vehemently contended that the Assessment orders for the years 1991-92 and 1992-93 in respect of M/s. Zam Zam Weaving and Processing Mills, Faisalabad in the hands of Mst. Raheela Tufail, the wife of the petitioner, still hold field and have not been annulled and fresh assessment cannot be made; further contended that the Bank Accounts were opened and operated by the petitioner on behalf of his wife being the sole proprietor of the said concern; having no concern at all with M/s. Zam Zam Weaving and Processing Mills owned by the petitioner.

5. The learned counsel for the respondent at the very outset raised preliminary objection that the petition is not maintainable for the reasons that the petitioner has not- exhausted all the remedies and as such is premature and the question involved is purely a question of facts.

6. I have heard the arguments of the learned counsel for both sides and have also perused the record.

7. The assessment for the year 1991-92 in case of Mst. Raheela Tufail, Proprietor M/s. Zam Zam Weaving and Processing Mills was made under section 62 of the Ordinance and four Bank Account statements as maintained by the petitioner's wife, as claimed, were placed on record alongwith the wealth statement under section 58(1) of the Ordinance; while the assessment for the year 1992-93 was made under section 59(1) of the Ordinance as qualified for Self-Assessment Scheme. The assessing officer neither mentioned the Accounts numbers nor dealt the manner, the Accounts were opened and to be maintained and operated; while on the other hand the copies of Accounts opening form in respect of Bank Account No. 3330 with Emirates Bank International Limited and Account No. 6040 with U.B.L. produced in the Court clearly indicates that the Bank Accounts were opened and operated by the petitioner as sole proprietor of M/s. Zam Zam Weaving and Processing Mills, Faisalabad.

8. The contention of the learned counsel that the petitioner opened and operated Bank Accounts on behalf of his wife Mst. Raheela Tufail being authorised by Power of Attorney executed in his favour; if so, is a question of fact to be determined whether the aforementioned Bank Accounts maintained and operated in various Banks belong to Mst. Raheela Tufail or to the petitioner as sole proprietor of M/s. Zam Zam Weaving and Processing Mills, Faisalabad.

9. I am of the opinion that it is a controverted question of fact and such a question cannot be resolved in Constitutional jurisdiction of the High Court; without prejudging the issue; the petitioner, who has already submitted the returns in response to the notice under section 65 and A proceedings have already been initiated by the respondent by issuing the mandatory notice under section 62 of the Ordinance; it is undesirable for the petitioner to switch over to the Constitutional jurisdiction of the High Court at his sweet-will in the mid of the proceedings in the absence of any compelling and justifiable reasons. Constitutional petition on such an issue of fact, is not, in any case competent.

10. It may be observed that the assessment in case of Mst. Raheela Tufail still stands in field, a difficult and complicated situation has arisen for the assessing officer as the same material was available with the Department when the assessment orders were passed; in the circumstances a question of law indeed arises whether on the basis of the same material, if so, by another assessing officer having different jurisdiction of area would amount to definite information or change of opinion, this question cannot be answered at this stage as still the controverted question of fact regarding the ownership of Accounts is to be determined. It would be 'appropriate for the assessing officer to seek guidance under section 7 of the Ordinance as to the fate of already assessments made in the hands of Mst. Raheela Tufail, which in fact still holds field and it is well-established principle of law that on the same transaction double assessment cannot be made. Under the circumstances, the writ petition lacks merits and is dismissed. M.B.A./Z-8/L Petition dismissed