1985 PLP 649 (PTD)

AJMAL MIAN, J.‑By .this common judgment we intend to dispose of the above two petitions. The brief facts leading to the filing of the above petitions are as follows: (i) C. P. No. D‑1091 of 1978.‑The petitioner had submitted his return for the assessment year 1975‑76 for the previous year ending on 30‑6‑1975, declaring net income of Rs. 9,

500. It seems that by. Finance Act, 1976, enacted section 3‑C and 5th Schedule to the Income‑tax Act, 1922 (herein after referred to as the Act) providing filing of declaration for undisclosed income. In pursuance thereof, the petitioner on 3‑8‑1976‑ filed a declaration under above section 3‑C disclosing undisclosed Income of Rs. 2 lacs. It seems that for nearly two years no action was Taken by the Department, but on 1‑7‑1978 the petitioner received a notice, dated 10‑6‑1978 from respondent No. 2 stating therein, that the declaration filed by the petitioner under section 3‑C was found insufficient. The petitioner also received on 3‑7‑1976 an assessment order, dated 29‑6‑1978 passed under section 23(3) of the Act. It is the grievance of the petitioner that respondent No. 2 has not followed the procedure provided for in the above 5th Schedule to the Act read with the relevant circulars issued by the Central Board of Revenue, and, therefore, the assessment order is illegal. The petitioner being aggrieved by the above order filed a regular appeal in the Department as well as the present petition. In the above petition a stay order was granted conditionally upon furnishing security, but the same was not furnished. (ii) C. P. No. 1295 of 1978.--‑The petitioner had been carrying on business as the sole proprietor since 1971 in the name and style "Sharp Business Machines" at 45, The Mall, Lahore. The petitioner had filed Income‑tax returns for the years 1972‑73, 1973‑74, 1974‑75 and 1975‑76 before the Income‑tax Officer `L' Circle, Lahore. It may be stated that except for the assessment year 1975‑76, the assessments of the aforesaid other charge years were finalised by the Income‑tax Officer 'L' Circle, Lahore. Upon the enactment of section 3‑C and the 5th Schedule to the Act, the petitioner filed a declaration on 30th August, 1976, declaring a sum of Rs. 30,000, as undisclosed income before the aforesaid Income‑tax Officer L Circle, Lahore. While the above return for the assessment year 1975‑76 arid the declaration made under section 3‑C were. pending before the aforesaid Income‑tax Officer at Lahore, the petitioner received a memo, dated 1‑3‑1978 intimating to her that her case was transferred from Lahore to respondent No. 2's file at Karachi. After that she received respondent ,No. 2's letter, dated 19‑6‑1978 stating therein, that her declaration tinder section 3‑C of the Act was found insufficient. The above letter was followed by the service of the assessment order, dated 29‑6‑1978, which according to Mr. Rehan Hassan Naqvi, learned counsel for the petitioner was received by petitioner on 17‑7‑1978 though no such averment is been made. The petitioner apart from filing a regular appeal Department has also filed the present petition. A conditional, stay order subject to furnishing security was granted in this petition. But o security was furnished. The grievance of the petitioner in this petition is that respondent No. 2 instead of following the procedure provided for in 5th Schedule and the circulars issued in pursuance thereof by the Central Board of Revenue has made regular assessment order under section 23(3) of the Act and, therefore, the assessment order is illegal.

2. In support of the above petition Mr. Rehan Hassan Naqvi, learned counsel for the petitioners has vehemently urged that since section 3‑C read with 5th Schedule of the Act and the circulars issued by the Central Board of Revenue in pursuance thereof provide a complete machinery for dealing with a case in which a declaration filed under above section 3‑C of the Act is found insufficient and that assessment could not have been made under normal provisions of the Act, namely, 23(3) for finalising the petitioner's liability on the amounts disclosed in the declarations under section 3‑C of the Act. In furtherance of the above submission he has cited the decisions of the learned Income‑tax Appellate Tribunal, reported in (1979) 39 Tax 35 (Trib.) and 1981 P T D (Trib.) 49 which prima facie support the contention of Mr. Rehan Hassan Naqvi. On the other hand Mr. Shaikh Haider, learned counsel for the respondent has contended that since the petitioners have filed regular appeals before the forum provided under the relevant, law, this Court should not exercise constitutional jurisdiction.

3. Without going into the question, whether a writ petition is competent if an order passed by an Income‑tax Officer prima facie is in violation of the provisions of the Act, we are of the view that since the Income‑tax Tribunal has taken a view, which favours the petitioners and as the regular appeals are still pending, we are not inclined to exercise constitutional writ jurisdiction, but would direct that the appeals may be finalized within a period of 4 months from the receipt of a copy of this judgment. The petitions stand dismissed with no order as to costs with the above observation. M. B . A. Petitions dismissed.