1992 PLP 1292 (PTD)

MAHBUB ALI KHAN, J: --The petitioner herein, Al-Imtiaz Academy, is affiliated to AI-Imtiaz Foundation registered under the Societies Registration Act XXI of 1860. The aims and objects of the foundation are set forth iii the Articles of Association. Al-Imtiaz Academy has been established to run an educational school at Abbottabad on non-profit basis. The Petitioner-Academy, therefore, claimed exemption from the payment of income-tax under Rule 86 to the Second Schedule of the Income Tax Ordinance, 1979 and on the acceptance of their plea they were issued a certificate by the Department on 30-10-1990. Thereafter in the year 1991 the Income Tax Officer, Abbottabad circle under section 65 of the Ordinance ibid on 9-10-1991 issued a notice to the Academy calling in question the previous assessment being under assessed and asked the petitioner to submit fresh returns for the said assessment period.

2. The Academy having felt aggrieved has impugned the vires of this notice (NT No. 01-29-480, dated 9-10-1991) in the instant writ petition moved under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 with a prayer to declare it illegal and without lawful authority. It has been stated that after having passed a final order on the assessment returns for the period between 1987-88 to 1989-90 by the Income Tax Officer, Abbottabad Circle his successor could not afterwards reopen the case and ask the Academy for the submission of another returns in the same matter for the same period. The respondent Income Tax Officer resisted the claim. Written comments were filed in response to the averments made in the writ petition. We have heard at length Mr. Ghulam Mustafa Awan Advocate on behalf of the petitioner-Academy and Mr. Eid Muhammad Khattak the learned counsel for the respondent.

3. The learned counsel of the petitioner-Academy has raised the following contentions. That on the assessment returns submitted by the Academy to the respondent for the years 1987-88 to 1989 W the Income Tax Officer, Abbottabad Circle after having been satisfied with the claim of the Academy furnished a certificate of exemption under Rule 86 to the Second Schedule of Ordinance XXXI of 1979. That his successor i.e., the present respondent cannot, therefore, re-open the case and call upon the Academy, for the submission of another returns in the same matter for the same period on the pretext that the returns earlier submitted were, under assessed. He thereby pleaded that the impugned notice issued to the Academy under section 65 of the Income Tax Ordinance, 1979 was thus illegal and without jurisdiction.

4. On a perusal of the record we have found that on the earlier returns submitted by the petitioner Academy for the period in dispute the Income Tax Officer, Abbottabad Circle on detailed consideration of the facts and scrutiny of the material relating to the case placed before him passed a conscious order on the application of mind and while agreeing with the claim of the Academy issued an exemption certificate under Rule 86 to the Second Schedule of the Income Tax Ordinance, 1979. His successor-in-office cannot therefore, take a different view subsequently on the same facts by re-opening the matter and no second notice under section 65 of the Ordinance ibid could be issued on the basis of a change of opinion. The position would have been otherwise if there had been passed by the Income Tax Officer a mechanical routine order on the first returns without making a detail scrutiny of the material relating to the controversy. In that situation the income assessing officer could initiate an action under section 65 of the Ordinance. In this view of the matter the learned counsel for the Academy has correctly placed reliance on the precedent cases reported in PLD 1989 Karachi 337 and 1991 PTD

345. The learned counsel appearing on behalf of the respondent was unable to make any rebuttal of these arguments.

5. We as such find no sanction of law behind the issuance of the impugned notice. The' act done on the part of the respondent is coram non judice. Consequently, we would accept this writ petition by declaring this order illegal and without lawful authority. M.B.A./1379/T??????????????????????????????????????????????????????????????????????????????????? Petition accepted.