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P L D 1985 Lahore 472
Before Riaz Ahmad, J
IFTIKHAR HUSSAIN AND 4 others Petitioners
versus
TAX RECOVERY OFFICER, MULTAN AND ANOTHER-Respondents
Writ Petition No. 77 of 1984/BWP, decided on 2nd April, 1985.
-- Ss. 70 & 73 (2 & 3)-Provisional Constitution Order (1 of 1981), Art. 9-Income-tax-Assessment-Change occurring in constitution of firm and new partners added in partnership -Notice issued by Tax Recovery Officer, to all partners, to make payment of super-tax and surcharge assessed against firm, in accordance with provisions of sections 70 & 73 (2 and 3), Income-tax Ordinance, 1979-Issue of notice as such, held, could not be challenged in constitutional jurisdiction of High Court.
Mian Allah Nawaz for Petitioners. R. A. Ghauri for Respondents.
On 1-9-1976, Muhammad Ashraf and his brothers namely, Sh. Abdur Rehman and Altaf Hussain entered into an agreement of partnership to run the business of sale and purchase of Motor Cars and other vehicles and spare-parts thereof. The business was to be carried under the name and style of M/s. Muhammadi Motors at Ra.himyar Khan. On 31-8-1980, another partnership deed was executed to run the business of the firm M/s. Muhammadi Motors, by the petitioners Nos. 1 to 3 sons of Muhammad Shafi and petitioners Nos. 4 and 5 sons of Muhammad Ashraf. According to new deed, it was provided that business will be deemed to have been commenced w. e. f. 1-7-1980.
2. Vide order dated 27-6-1983, the Income-tax Officer, Circle-I, Rahimyar Khan assessed the income of Messrs Muhammadi Motors, Rahimyar Khan for the period from 1-9-1979 to 30-6-1980 i. e. before the commencement of the business under the partnership deed dated 31-8-1980, according to which, as stated above, the learned Income-tax Officer noticed, that the partners had concealed the operation of bank accounts. The inquiry made by the Income-tax Officer, reveals that the bank accounts were being maintained at Karachi and other places to run the business. It was further noticed that the bank account at Karachi was being operated in the name of one of the partners. The Income-tax Officer further noticed, that in the returns only income of the commission had been declared, whereas the income from the sale and purchase of vehicles had also been concealed. Accordingly, the net income of the firm was assessed at Rs. 4,47,367 after deducting the super-tax and surcharge the balance divisible income was assessed to Rs. 3,36,543. According to the shares allocation, vide partnership deed, whereas Altaf Hussain and Abdur Rehman were assessed at Rs. 1,11,059 each.
.3. The respondents took steps for the recovery of Income-tax and a notice dated 8-2-1989 was issued to the petitioners to make payment of Rs. 1,10,824 i. e. super-tax and surcharge assessed against the firm M/s. Muhammadi Motors. The partners namely, Muhammad Ashraf, Altaf Hussain and Abdur Rehman have challenged the assessment order dated 27-6-1983 in an appeal.
4. The present petition has been filed to assail the notice dated 8-2-1984 issued by the respondents, to the firm M/s. Muhammadi Motors, for the payment of super-tax and surcharge. In support of this petition, it has been contended that the notice could not have been issued to the petitioners because, they were neither assessees nor partners in the previous partnership business.
5. I have beard the learned counsel for the parties and I have also perused the comments sent by the Department. The petition 1s1A misconceived; because of the provisions of section 70 (1) and section 73 of the Income-tax Ordinance, 1979. Section 70 read as under:-
"70 (1). Change in the constitution of a firm.-Where, at the time of making an assessment on a. firm under section 62, 63 or 65 it is found that a change has occurred in the constitution of the firm, the assessment shall be made on the firm as constituted at the time of making the assessment, but the income of the firm shall be apportioned among the partners who were entitled to receive it and, where the tax assessed upon a partner cannot be recovered from him, it shall be recovered from the firm as constituted at the time of making the assessment."
The perusal of the above provision of law is complete answer to the grievance made out in the petition. Similarly, section 73 (2 and 3) are also relevant in this behalf. The same are reproduced hereunder:
"73 (2). Notwithstanding anything contained in subsection (1), where the predecessor cannot be found, the assessment. of the income of the income year in which the succession took place up to the date of succession and of the income year or years preceding that year shall be made on the successor in like manner and to the same extent as it would have been made on the predecessor, and all the provisions of this Ordinance shall, so far as may be, apply accordingly."
"73 (3). Where any tax payable under this section in respect of such business or profession cannot be recovered from the predecessor, it shall be recoverable from the successor, who shall be entitled to recover it from the predecessor."
The perusal of the above subsection would clearly show that the) impugned notice was sent with lawful authority and jurisdiction and, therefore, the same cannot be challenged in exercise of constitutional' jurisdiction of this Court. The writ petition being misconceived is] hereby dismissed in limine.
M. Y. H. Petition dismissed.
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