K.B. ENTERPRISES VS FEDERATION OF PAKISTAN, 2016 PTD-LAHORE-HIGH-COURT-LAHORE 1078 (2015)

Income Tax Ordinance (XLIX of 2001)---

----Ss. 122(9) & 131---Constitution of Pakistan, Art. 199---Constitutional petition---Fresh show-cause notice issued during pendency of appeal before Appellate Tribunal---Scope---Contention of petitioner/taxpayer was that appeal had been filed by Department against the order of Commissioner of Inland Revenue which was still pending and since the matter was pending before Appellate Tribunal, Department could not issue a fresh show cause notice on the same matter to the petitioner---Held, that since appeal of Department was pending before Appellate Tribunal, there was no occasion to issue a fresh show-cause notice, hence, impugned show-cause notice was set aside and Department was directed to pursue their appeal before Appellate Tribunal---Constitutional petition was allowed accordingly.

Khubaib Ahmad for Petitioner.

Sarfraz Ahmad Cheema for Respondents.

ORDER

AYESHA A. MALIK, J.---Learned counsel for the Petitioner states that against the order of Commissioner Inland Revenue (Appeals) dated 28.11.2012, an appeal has been filed by the Respondent Department which is still pending. States that since the matter of the Respondent Department is pending before the Appellate Tribunal (Inland Revenue), Lahore, the Respondents cannot issue a fresh show cause notice on the same matter. States that any grievance that they may have with respect to the order passed by the Commissioner Inland Revenue (Appeals) should be raised before the Appellate Tribunal.

2.Learned counsel for the Respondents states that no decision has been taken on the appeal. Further states that Respondent No.3 may look into the matter and pass a speaking order on the issue.

3.I have heard both the learned counsel and find that admittedly an appeal is pending on the same matter with respect to the same allegations and the same amount of Rs.1,850,156/-. Since the appeal of the Respondent Department is pending, there is no occasion to issue a fresh show cause notice. Therefore, the impugned show cause notice is set aside and the Respondents should pursue their appeal before the Appellate Tribunal Inland Revenue.

4.Petition is allowed in the above terms.

RR/K-35/LPetition allowed.