2002 PLP 672 (MLD)

2. Maqsood Ahmad v. Settlement Department (1986 CLC 2419).

3. Subedar Major Gul Zaman v. Settlement Commissioner (PLD 1976 Lahore 1454).

4. Sindh Employees' Social Security v. Dr. Munawar Ali Taj (PLD 1975 SC 450).

2. I have given my anxious consideration to the contentions of the learned counsel of the petitioner and perused the record myself. It is settled principle of law that writ petition is not maintainable against the show‑cause notice as per principle laid down by the superior Courts in the following judgments:‑‑

1. Mst. Shagufta Begum v. Income Tax Officer (PLD 1989 SC 360).

2. Nabi Bakhsh Khoso v. National Bank of Pakistan (2000 SCMR 1017).

3. Pak Arab Fertilizer (Pvt.) Ltd. v. Deputy Commissioner Income Tax (2000 PTD 263).

4. Liaqat Ali v. Assistant Commissioner Income Tax (2000 PTD 369).

5. Amin Textile Mills (Pvt.) Ltd v. Commissioner of Income Tax (2000 SCMR 201). The aforesaid proposition of law was considered by the Honourable Supreme Court in the case of Messrs Amin Textile Mills (supra) (2000 SCMR 201) and laid down the following principle:‑ "

3. After hearing the learned counsel for the petitioners at some length we may observe that simplicitor the factum that notice under section 65 of the Ordinance had been issued, would not render them invalid or void. There is no material on record to show that the competent Authority failed to apply its independent mind to the facts of the case before issuing notices. Be that as it may, the High Court, was right to observe that the petitioner should, in the first instance, approach the hierarchy of the forums provided for under the Ordinance instead of filing a Constitutional petition. Apart from the bald assertion that the impugned order is void ab initio there is nothing on record to substantiate the above plea. In the case of Al‑Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal (1993 SCMR 29). this Court discouraged the tendency to bypass the remedy provided under the relevant statute to press into service Constitutional jurisdiction of the High Court. Be that as it may, the petitioners shall be at liberty to raise whatever pleas available to them against the impugned notices before the Income Tax Authorities. We have no doubt in our minds that any objection raised by the petitioners against impugned notices shall be duly considered and disposed of in accordance with law before any adverse order, is passed by the concerned Authorities, without prejudice to any observations made in the impugned judgment as well as this order. However, in the circumstances of the case, imposition of costs is set aside."

3. It is also admitted fact that the petitioner has alternative remedies to agitate the matter before the Authorities under the provisions of Punjab Local Government Ordinance either by filing reply of the notice or to avail right of appeal/revision etc., before the higher forum. My learned brother the then Ihsan‑ul‑Haq, J., has considered this aspect of the case in Writ Petition No.4174 of 1998 and laid down the following principle:‑‑ "There is recent tendency to file Constitutional petitions without exhausting the remedies under the Statute. This recent trend is dangerous. Hon'ble Supreme Court clearly held in the cases reported as Pir Sabir Shah v. Shad Muhammad Khan, N.‑W.F.P. and another (PLD 1995 SC 66), The Collector Customs Karachi v. Messrs New Electronics (Pvt,) Ltd., and 59 others (PLD 1994 SC 363) and Riffat Askari v. State (PLD 1997 Lahore 285) that objection be raised in the proper forum but in spite of this the petitioner without exhausting the remdies of appeal before the Collector of Customs (Appeals) and the Tribunal has filed this petition. It is noteworthy that according to the amendment made through Finance Act, 1997 now third appeal is competent in this Court also which is to be heard by at least a Bench of two Judges." It is consistent view of the Hon'ble Supreme Court that the opportunity must be given to the Department to adjudicate the matter first and then the petitioner should have to approach this Court after availing all the remedies provided under the Statute. I am supported by the judgment of the Hon'ble Supreme Court (1993 SCMR 29). It is also settled proposition of law that judgment of the Hon'ble Supreme Court is binding on each and every organ of the State and judgment of this Court is binding on each and every organ by virtue of Article 201 of the Constitution. Respondent No.1 is duty bound to decide the matter in accordance with the dictum laid down by the superior Courts.

4. I have also taken the aforesaid view in Messrs Pak Arab Fertilizer's case (2000 PTD 263). Keeping in view of the principle of consistency I am not in a position to deviate from my own view as per principle laid down by the Honourable Supreme Court in Muhammad Muzaffar Khan v. Muhammad Yusuf Khan (PLD 1959 SC 9). The judgments cited by the learned counsel for the petitioner are distinguished on facts and law are not in accordance with the latest trend of the Hon'ble Supreme Court in the aforesaid cases.

5. In view of what has been discussed, above, this writ petition is not maintainable. The petitioner is directed to appear before respondent No. 1 alongwith his reply on 5‑11‑2001 who is directed to proceed in the matter after perusing the contents of the reply in terms of the law laid down by the Honourable Supreme Court in Shagufta Begum's case (PLD 1989 SC 360). However, in the interest of justice and fair play the impugned notices are held in abeyance till the aforesaid date. With these observations this writ petitions is disposed of. H.B.T./K‑93/L Order accordingly.