1985 PLP 785 (PTD)

NAIMUDDIN, J.‑The petitioner which is a limited liability company filed a return of income on 24‑8‑1982, showing an income of Rs. 1,02,42,92?. The return, as stated in the assessment order, dated 27‑2‑1985 passed by the Income -tax Officer. Companies Circle B‑IV, Karachi respondent 2, was based mostly on estimated figures, provisions, and un-audited accounts. However, the Income‑tax Officer assessed a taxable income of Rs. 3,13,45,455 and accord ingly computed the income‑tax, and super tax of Rs, 1,62,99,

637. After adjusting a sum of Rs. 35,07,905 he issued a demand notice, dated 7 2‑1985, for payment of a suns of Rs. 1,27,91,732.

2. The petitioner, as stated in the petition on 18‑3‑1985, wrote a letter to respondent 2 informing him that the demand has to be reduced by Its. 17,73,516 recovered under section 5014) of the Act and requesting for rectifying the error and also praying for staying the recovery of the demand till the decision of the appeal ; as in the meantime the petitioner has filed an appeal against the order of respondent 2 with the Commissioner of Income‑tax (Appeals), respondent 1.

3. Thereafter, on 21‑5‑1985, the petitioner has filed this petition under Article 9 of the Provisional Constitution Order, 1981, praying for a declara tion :‑ "that the action of the respondents, in terms of refusal to grant out of turn hearing, disposal of appeal and/or pressing into service, coersive measures for recovery of the disputed demand to be illegal, unlawful and of no legal consequence." Alternatively, praying for a direction to respondent 1 :‑ "to dispose of the appeal of the petitioner within the specified period of time and pending disposal of such appeal, no coersive measure may be taken for the recovery of disputed demand as the respondents. have already recovered 30 Y. of the disputed demand as well as from banks." and for a direction to the respondents :‑ "to recall the orders of attachment of bank accounts of the petitioner pending disposal of this petition and/or alternatively pending disposal of the appeal of the petitioner pending adjudication with respon dent No. 1."

4. We have heard Mr. Raja Qureshi learned counsel for the petitioner and Mr. Shaikh Haider, learned counsel for the respondents who has appeared in this case on behalf of the respondents without any notice and who has filed objections to the position stating that the petition is misconceived and is opposed to the provisions of the Income‑tax Ordinance of 1979, and Article 9 of the Provisional Constitution Order, 1981 and that no stay be granted against the exercise of jurisdiction lawfully vested in the respondents and no stay is desirable to be granted against recovery of taxes in the circumstances of this petition.

5. The only ground urged by Mr. Raja Qureshi learned counsel for the petitioner is that respondent No. 1 has not decided the appeal though the same was filed on 27‑2‑1985, and now almost six months have passed and they are taking coersive measures to enforce recovery of the tax dues. He has sub mitted that on similar ground Constitutional Petition No. D‑745 of 1984, Messrs Genera! Another Division Bench has admitted Investment Limited v. Commissioaer of Wealth Tax and Gift Tax, Southern Zone, Karachi. We may reproduce the admission order, dated 10‑10‑1984, in that case for the take of convenience of future reference, which reads as follows "

3. Mr. Khalid Lateef has pointed out that in several other matters, including C. P. No. 1147/1981, grievance was made by the petitioners that the Appellate Authority was declining to grant stay, and also refusing to hear the appeal at an early date. In such circumstances, the counsel appearing for the department had in several cases, made a consent statement to the effect that the department shall hear the appeal early and until then, recovery shall not be effected Mr. Shaikh Haider states that in this case, he has been instructed not to consent. We cannot see how we can deal with the present petitioners in a different manner. In these circumstances, we order :‑ (i) That the appeal filed by the petitioner shall be decided within a period of four months. To this extent even Mr. Shaikh Haider consents. (ii) That the petitioner shall not alienate any property of his for a period of four months from today. (iii) That for a period of four months from today, the respondent shall not enforce any recovery."

6. However, we asked Mr. Raja Qureshi to point out any provision in the Income‑tax Act, 1922 under which respondent t is obliged to dispose of tae appeal within certain time so that for non‑compliance of which a direction as prayed by the petitioner could be issued. He frankly conceded that there is no such provision.

7. Under Article 9 of the Provisional Constitution Order, 1981, we have jurisdiction on an application of an aggrieved person (i) to make an order directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the, affairs of the Federation, Province or a, local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do, (ii) or to declare that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect. 8. ‑In the present case since respondent 1 is not required by law to dispose of any appeal within certain time, we cannot say that by not immediately disposing the appeal as desired he is acting contrary to law. It is for him to hear the appeal on its turn and in his discretion, out of turn. The petitioner has not even annexed to the petition copy of any letter whereby any request for out of turn hearing was made. We are, therefore, of the view that the prayer made in this petition cannot be granted.

9. The petitioner has not challenged the assessment order before us on any ground whatever. Indeed it could not be questioned before us except only the ground of patent want of jurisdiction, which is not the case here.

10. Now, remains the order passed in C. P. No. D‑745 of 1984, to be considered. We have already quoted the order. It will be seen from it that in that case the appeal was directed to be decided within a period of four months because Mr. Shaikh Haider who was appearing. for the Department consented for the same. But in the present case not only that he has not consented but has vehemently opposed the prayer under the instructions of the Department and has filed written objections. The order relied upon by Mr. Raja Qureshi is based on consent of the learned counsel for the Department and not on any provisions of law or principle and therefore, cannot be accept ed as precedent in the present case. We, therefore, dismiss this petition in limine as being misconceived. M. B. A. Petition dismissed.