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Writ Petition No. 3574 of 1984, decided on 11th January, 1986.

‑‑‑S. 59(1‑A) [as amended by Finance Ordinance, l985]‑‑Provisions of 5.59(1‑A) has retrospective effect Self‑Assessment Scheme can incorporate within it a provision for selection of cases for detailed scrutiny and may contain provisions which exclude certain kinds of returns from its ambit‑‑Central Board of Revenue or Officer authorised by it is expressly empowered to select cases or class of cases for detailed scrutiny.

Cannon Products Limited v. Income‑tax Officer 1985 P T D 549 distinguished.

‑‑‑S. 59(1‑A) [as amended by Finance Ordinance, 1985]‑‑Self‑Assessment Scheme‑‑Power of Central Board of Revenue to select cases or class of cases for detailed scrutiny‑‑Powers of Central Board of Revenue for prescribing qualifications (which expression includes disqualifications as well), having been left entirely to Central Board of Revenue, by itself was not an excessive delegation by Legislature‑‑Excessive delegation‑‑Test‑ Doctrine of separation of powers, stated.

Naseer Ahmad Khan v. Province of West Pakistan P L D 1980 Lah. 684; Sohbat Khan v. State P L D 1866 Pesh. 210 and Saleh Muhammad v. Traffic Manager, Port Trust, Karachi P L D 1961 Kar. 349 distinguished.

Cannon Products Limited v. Income‑tax officer 1985 P T D 549; Waris Meah v. State P L D 1957 S C 157; Mehreen Zaibun Nisa v. Land Commissioner P L D 1975 S C 397; Muhammad Umar Khan v. Pakistan PLD 1982 Pesh. 1; Seervai on Commentary on the Constitutional Law of India; King‑Emperor v. Benoari Lal Sharma A I R 1945 PC 48 and Mr. A.K. Brohi on Fundamental Law of Pakistan ref.

‑‑‑S. 59(1‑A) [as amended by Finance Ordinance, 1985]‑‑Self‑Assessment Scheme‑‑Power of Central Board of Revenue to select cases or class of cases for detailed scrutiny‑‑Criteria applied to select cases for detailed scrutiny not arbitrary, unreasonable or unfair‑‑Selection thus was not discriminatory and power given to Central Board of Revenue under S.59(1‑A), therefore, was not exercised arbitrarily in circumstances.

‑‑‑S. 59(1‑A) [as amended by Finance Ordinance, 1985]‑Self‑Assessment Scheme‑‑Selection of cases for detailed scrutiny by Central Board of Revenue does not preclude assessee from showing in regular assessment that return as filed by him under Scheme truly represented his income in relevant year‑‑Selection of cases for detailed scrutiny therefor, does not automatically saddle assessee with a tax burden which does nut legally fall upon him‑‑‑Assessee having not been given opportunity of being heard before his case was selected for detailed scrutiny, notice issued to him was not illegal.

Commissioner of Income‑tax v. Fazlur Rahman P L D 1964 S C 410 and Commissioner of Income‑tax v. Hijvery Agencies P L D 1984 Lah. 401 distinguished.

‑‑‑Art. 199‑‑Income‑tax Ordinance (XXXI of 1979) S. 59(1‑A)[as amended by Finance Ordinance, 19851‑‑Self‑Assessment Scheme‑‑Question of selection of categories of cases to be granted immunity from detailed scrutiny‑‑Certain facts have to exist before such immunity could be granted‑‑High Court, in its constitutional jurisdiction declined to determine whether these facts existed or not.

Ali Bin Abdul Kadir for Appellant.

Muhammad Ilyas Khan and Ch. M. Ishaq for Respondent.

Dates of hearing: 10th, 11th, 15th, 17th, 18th, 22nd, 24th, 25th June; 6th, 8th and 9th July, 1985.

‑‑This order will dispose of 73 writ petitions registered as W.P.Nos. 3574 and 4988, both of 1984 and W.P.No. 1541, 1593, 1634, 1635, 1636, 1649, 1757, 1758, 1764, 1686, 1896, 1897, 1898, 1916, 1952, 1953, 1954, 1955, 1956, 2050, 2051, 2052, 2053, 2059, 2060, 2061, 2062, 2099, 2100,.2101, 2102, 2112, 2113, 2114, 2115, 2116, 2117, 2125, 2128, 2129, 2136, 2167, 2173, 2175, 2188, 2189, 2190, 2191, 2192, 2193, 2194, 2195, 2199, 2216, 2219, 2269, 2270, 2271, 2287, 2290, 2297, 2320, 2334, 2353, 2354, 2357, 2402, 2476, 2524, 2605 and 2817 all of 1985. These have been taken together as common questions of law have been raised in them.

2. The writ petitions relate to the assessment years 1982‑83, 1983‑84 and 1984‑85. The petitioners in these writ petitions filed returns under the respective Self‑Assessment Schemes framed for these years. Their cases were picked up for detailed scrutiny and they received notices from the Income‑tax Officer concerned in this regard. They have challenged the legality of these notices and the selection of their cases for detailed scrutiny.

3. For about two decades now Self‑Assessment Schemes are being prepared by the Central Board of Revenue annually in respect of each assessment year with the object of encouraging those whose incomes soar above the non‑taxable limit to pay their taxes voluntarily. The schemes give rise to an expectation in the mind of a tax‑prayer that the declaration made by him with regard to his income would be accepted on its face value, and that he would not be subjected to bureaucratic harassment. Originally, the sanction behind these schemes was rule 46 of the Income‑tax Rules, but in 1980, provision was made in the Income -tax Ordinance itself for their formulation. Nor this purpose section 59(1) was amended by Finance Ordinance of 1980. After the amendment the said section reads as follows:‑

"Where the return of total income for any income year furnished by the assessee under section 55 qualifies for acceptance in accordance with the provisions of a scheme of self‑assessment made by the Central Board of Revenue for that year or under any instructions or orders issued thereunder, the Income‑tax Officer shall assess, by an order in writing, the total income of the assessee on the basis of such return and determine the tax payable on the basis of such assessment."

The schemes framed before the amendment of section 59(1) had limited application inasmuch as only certain class or category of assessees could take advantage of them but the schemes prepared subsequent to the amendment had a much larger scope for they were extended to all assessees provided they fulfilled certain conditions and did not incur the disqualifications laid down therein.

4. As stated earlier, the petitions before us relate to the assessment years 1982‑83, 1983‑84 and 1984‑85. In order to properly appreciate the arguments addressed in support of these petitions it will be of advantage to give a general but brief account of the contents of the schemes prepared for these years. All the three schemes consist of nine paragraphs. The first paragraph states that all the returns should be treated as self‑assessment returns subject to certain conditions. It then draws a distinction between the existing tax‑payers and new tax‑payers and excludes certain categories of tax‑payers from the ambit of the schemes. None of the petitioners before us is hit by the exclusion clauses, which for that reason need not be noticed. Paragraph 2 sets out the documents, which must accompany a return. The nature of documents required by this paragraph differs with the source from which an assessee has derived his income. Paragraph 3 permits a tax‑payer to make lump sum additions to his income without being compelled to declare the nature or source thereof. Paragraph 4 specifies cases which do not qualify for processing under the Self‑Assessment Scheme. Clause (b) of this paragraph excludes such cases from the ambit of the schemes as have been selected for detailed scrutiny in accordance with paragraph 5. The last‑mentioned paragraph, that is paragraph 5, permits the selection of cases or classes of cases for detailed scrutiny. As to the authority, which may make the selection different provisions have been made in the three schemata. Paragraph 6 is in the nature of an exception to paragraph 5 inasmuch as it‑lists cases which are to be in any event immune from detailed scrutiny. Paragraphs 7 and 8 lay down the procedure in accordance with which the returns filed under the self‑assessment and those picked out for detailed scrutiny are to be processed. Paragraph 9 excludes those cases from the benefit of the scheme where positive evidence of concealment exists or comes into the possession of the department during the pendency of the assessment.

5. To begin with, it was argued on behalf of the petitioners that section 59(1), in pursuance of' which the schemes had been framed by the Central Board of Revenue spoke of only self‑assessment; consequently, any provision in the schemes which permitted picking out of cases for detailed scrutiny was outside its purview. This argument was fortified with the observation that the schemes had been framed in order to encourage the tax‑payers to voluntarily declare their true incomes and pay their taxes honestly; if the tax‑payers were to receive the impression that the returns filed by them could also be subjected to detailed scrutiny the confidence which the said section intended to instill in them would be eroded and thus its very object would stand defeated. This argument cannot be accepted on the interpretation of section 59(1) which itself states that before a return filed by a tax‑payer is accepted under a scheme it must qualify for acceptance in accordance with the provisions thereof. Thus, this subsection, in terms, envisages that certain returns may not qualify for acceptance under the scheme. However that may be, the Legislature itself has now Intervened to repel all doubts. By the Finance Act of 1985 it has amended section 59 of the Income‑tax Ordinance by adding therein a new subsection as subsection (1‑A). This subsection reads as follows:‑

"Notwithstanding anything contained in subsection (1), the Central Board of Revenue or any authority subordinate to it, if so authorised by the Central Hoard of Revenue in this behalf, may, in accordance with a scheme referred to in subsection (1), select out of returns referred to in that subsection any cases or classes of cases or persons or classes of persons, howsoever determined, for assessment under section 62, and the Income‑tax Officer shall proceed to make the assessment under that section or, if the circumstances so warrant, under section 63, accordingly."

It may be mentioned that this subsection has been given retrospective effect. Thus, the contention or) behalf of the petitioners that a Self -Assessment Scheme prepared under section 59(1) could not incorporate within it a provision for selection of cases for detailed scrutiny must be rejected.

6. The competence of the Central Board of Revenue to pick out cases or classes of cases for detailed scrutiny was considered by the Sind High Court in Cannon Products Limited v. Income‑tax Officer 1985 P T D 549. It was held that the Board had no such power. Now with the introduction of subsection (I‑A) in section 59 the Legislature has expressly authorised interaila board to exercise this power. Thus the defect to which the: learned Judges of the Sind High Court referred stands removed.

7. It was then argued that the provisions in the schemes providing for selection of cases for detailed scrutiny as well as the new subsection (1‑A) were bad in law inasmuch as they conferred unfettered power on the Central Board of Revenue and the functionaries subordinate to it in selecting cases or classes of cases without laying down any standards or guidelines for the exercise of that power. It was alleged that the cases of the petitioners had been singled out without any tangible basis, which gave an indication how in actual practice the said power was being arbitrarily employed. In support of the contention that excessive delegation was bad in law reliance was placed upon a number of decided cases reported as Waris Meah v. State P L D 1957 S C 157; Mehreen Zaibun ‑Nisa v. Land Commissioner P L D 1975 S C 397, Naseer Ahmad Khan v. Province of West Pakistan P L D 1980 Lah. 684, Sohbat Khan v. State P L D 1966 Pesh. 210, Muhammad Umar Khan v. Pakistan PLD 1982 Pesh 1 and Saleh Muhammad v. Traffic Manager, Port Trust, Karachi P T D 1961 Kar. 349.

8. I may staightaway mention that the cases cited as Naseer Ahmad Khan v. Province of West Pakistan, Sohbat Khan v. State, Muhammad Umar Khan v. Pakistan and Saleh Muhammad v. Traffic Manager, Port Trust, Karachi, ibid, do not relate to a plea of excessive delegation and are for that reason not relevant. The said plea is really founded on the doctrine of separation of powers. It is based on the premises that where the basic law of the lend has allocated to a particular organ of the State the responsibility to exercise the Legislative power, that body cannot abdicate its function to another organ of the State. This doctrine has been applied with comparatively greater rigidity in countries like the United States of America where tire separation of powers forms the basic theme of the Constitution. Or, the other hand in countries where the distinction between the legislative and the executive powers s not so sharp a fairly large measure of delegation by the legislature to the executive has been permitted. Thus, Seervai in his commentary n the Constitutional Law of India observes:

"it is noteworthy that in no cases before the Privy Council has the challenge on the ground of delegated legislation succeeded even when it had succeeded in the trial Court or the Court of Appeal, and the decision in In re: the Initiative and Referendum Act is not an exception. The Privy Council has upheld extensive "delegation" of legislative power. Thus, it upheld the power to bring a law into force in a district and to apply to that district, the whole or part of the present or future laws prevalent in other districts; the provision that certain parts of an Act should come into operation only on the petition of a majority of electors; the power conferred upon a Board‑to create offences end annex penalties the power given to the Governor to impose customs duty on articles not contained in the schedule of dutiable articles passed by a Legislature; powers of the most extensive kind conferred upon a Marketing Board and powers conferred on Provincial Governments in India to bring the Special Criminal Courts Ordinance No.2 of 1942 into effect, or being satisfied that an emergency created by the Second World War existed in a Province." P. 11'86, Vol. II, Second Edition.

In King‑Emperor v. Benoari Lal Sharma A I R 1845 P C 48, the Privy Council observed:‑‑"the question whether the Ordinance is intra vires or ultra vires does not depend on consideration of jurisdiction or of policy. It depends simply on examining the language of the Government of India Act and of comparing the legislative authority conferred on the Governor‑General with the provisions of the Ordinance by which he is purporting to exercise that authority. It may be that as a matter of wise and well framed legislation it is better, if circumstances permit to frame a statute in such a way that the offender may know in advance before what Court he will be brought if he is charged with a given crime; but that is a question of policy, not of law". This view of the Privy Council was upheld by the Supreme Court in a case cited by the petitioners themselves, namely, Waris Mesh v. State, ibid. It related to a prosecution under the Foreign Exchange Regulation Act. Under this Act there were three lore where a person alleged to have violated the provisions of the Act could be prosecuted. The discretion to choose the forum lay with the Central Government and the State Bank of Pakistan. The nature of the punishments that could be imposed differed with each forum. A conviction under the Act was challenged before the Supreme Court on two grounds. In the first plate it was urged that inasmuch as the Central Government or the State Bank had the discretion to choose the forum the relevant provisions were bad on account of excessive delegation; in the second place, the power to choose the forum was discriminatory and was violative of the fundamental rights of equality before law as incorporated in the Constitution of 1956. The Supreme Court rejected the first contention that the Foreign Exchange Regulation Act was bad because it delegated excessive powers on the executive authority to choose the forum for launching prosecution. However, the Supreme Court accepted the other ground, namely, the provision in question was discriminatory and violative of the fundamental right of equality before law. In Mehreen Zaibun Nisa v. Land Commissioner, Ibid, another case cited by the petitioners, paragraph 29‑A of the Martial Law Regulation 115 came under attack on the ground of excessive delegation. This paragraph enabled the President to reduce the upper ceiling of the area, which could be owned or possessed by an individual. This attack was respelled by the Supreme Court. Anwarul Haq. J. (later C.J.), speaking for the Court, observed:‑

"The line of separation between the powers that have to be exercised directly by the Legislature itself and those that may be delgated is not capable of clear definition. The tendency, even in the United States of America, is towards the enlargement of the powers of delegation due to the growing complexity of the functions of the State. The powers of delegation have, therefore, been held to vary not only with the scope of the authority of the delgating body, but also by the variety of the conditions and circumstances a particular law is intended to meet, and the status and authority of the body to which the power is delgated. Where the Legislature has sufficiently expressed its will and exercised its judgment as to the territorial extent, scope and subject‑matter of the legilsation, the provision of details, particularly when such details are by their very nature incapable of being laid down by the Legislature itself, can well be left to be done by another agency in whom the Legislature places confidence. When the Court is called upon to determine the vires of delegated legilsation, enacted in implementation of the dictates of the Constitution, it should be guided more by the consideration to ensure that the intention of the Legislature is not frustrated, The absence of standards or guidelines in a statute would not necessarily render the statute unconstitutional, while the conferment of uncontrolled and arbitrary power on the delegate would render the statute void. It is generally accepted that no provision of law can fall within the rule against delegated legislation if it is based on a policy, discoverable from that provision itself, which has to be implemented by the person against whom the charge of unauthorised legislation is made."

9. To examine the plea of excessive delegation it will be of advantage to first take notice of the relevant provision of the Income‑tax Ordinance: Section 55 of the Income‑tax casts a duty, inter alia, upon every person whose income in any year exceeds the maximum amount which is not chargeable to tax under the Ordinance to file a return of his total income for that income year. After a return has been filed the provisions of section 59(1) came into play. The said subsection has been reproduced in paragraph 3 ante. It states that an Income‑tax Officer shall assess the income of the person filing the return on the basis of the said return provided it qualifies for acceptance in accordance with the provision of a scheme of self‑assessment made by the Central Board of Revenue for the relevant assessment year. As noticed earlier, the direction given in this subsection is not unqualified, for it applies only to those returns, which qualify for acceptance under the relevant scheme. It is, therefore, quite clear that a scheme may contain provision which exclude certain kinds of return from its ambit. In all the three schemes similar provision exists in this regard. Reference in this context can be made to paragraphs 4 and 9 of the three schemes. So far as paragraph 9 is concerned it is not relevant for the purpose of the petitions before us. Clause (b) of paragraph 4 in all the three schemes is similarly worded. It reads as follows:

"The following cases shall not qualify for proceeding under Self- Assessment Scheme:

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(b) Cases selected for detailed scrutiny by the Board as specified in para. 5.

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Paragraph 5 to which reference has been made in the above clause was identically worded in the schemes prepared for the assessment years 1982‑83 and 1983‑84. It reads as follows;-

"The cases or classes of cases will be selected for scrutiny by Central Board of Revenue under a Policy to be announced after the receipt of returns. The NTN of cases selected for detailed scrutiny and details of classes which may be selected by the Central Board of Revenue, shall be displayed on the notice board in Income‑tax Offices. The tax‑payers concerned shall be promptly informed. Cases selected for detailed scrutiny will not be excluded from that category on the basis if upward revision of declared income."

In the Scheme for the year 1984‑85 paragraph 5 was differently expressed. Part (a) of this paragraph was in the following terms:‑

"The classes of cases will be selected for scrutiny by Central Board of Revenue under a policy to be announced after the receipt of returns. Selection of individual cases will be made by the Regional Commissioners in consultation with CBR. The NTN of cases selected for detailed scrutiny and details of classes which may be selected by the Central Board of Revenue shall be displayed on the notice boards in Income‑tax Offices. The tax‑payers concerned shall be promptly informed. Cases once selected for detailed scrutiny will not be excluded from that category on the basis of upward revision of declared income."

10. As envisaged by paragraph 5 in each assessment year the Central Board of Revenue issued circulars specifying different trades and businesses to be as a class taken out from the purview of schemes. The classes excluded varied with each year. Apart from that, in the circular provision was made for selection of individual cases, which did not fall in the excluded classes.

11. A subsidiary argument raised on behalf of the petitioners may be noticed at this stage. It was urged that on a correct interpretation of paragraph 5 the selection of individual cases for detailed scrutiny was to be confined to those which fell within the classes specified by the Central Board of Revenue in the annual circulars referred to above. This argument is devoid of merit for 'individual case' has been categorised as a separate class in the circulars issued by the Board. Apart from that, the new subsection (1‑A) of section 59 expressly empowers the Board or officer authorised by it in this behalf to select any case for detailed scrutiny.

12. It is true that neither subsection (1) nor subsection (1‑A) lays down any guideline or principle for selecting cases or classes of cases for the purpose of detailed scrutiny; on the other hand the question of prescribing qualifications (which expression for obvious reason includes disqualifications as well has been left entirely to the Central, Board of Revenue but this by itself is not sufficient to describe this to be a case of excessive delegation. The test to be applied is whether; the omission of the Legislature in not prescribing the qualifications makes the legislation incomplete in the sense that prescribing the qualifications or disqualifications would have of compulsion to be treated as an act of Legislature itself. We .do not think so. As already noticed section 59(1) does not say that all returns filed by an assesses under; section 59 should automatically be processed under the scheme of self assessment; on the other hand, it merely states that only such returns as prescribed the qualifications laid down in the scheme should bet entitled to this benefit. Now what should be the qualifications on disqualifications is essentially a matter of policy and requires expert knowledge of the field of income‑tax which admittedly is a highly specialized one where the ingenuity of the tax‑payer is consistently at, work to devise means, both legitimate and illegitimate to lessen his burden. Therefore, if in the circumstances, the Legislature has left the task of laying down the qualifications to a body, which possesses expert knowledge in the field it can hardly be said to have abdicated its legislative functions in favour of that body. As pointed out by Mr. A.K. Brohi in the Fundamental Law of Pakistan, 'the Legislatures in the modern States have to perform very many duties, and the amount of legislative work they are called upon to transact is so enormous that if, in some manner schemes were not designed to delegate at least a part of that work to other subordinate organs and agencies, it would not be possible for them, having regard to the time and information at their disposal, to carry through this stupendous programme of providing for the detailed system of law that is required of them. The necessity to delegate some part of the legislative authority is there; the only question is about the limits within which such an authority could be delegated. Even in America, under the stress of modern conditions, the Legislature finds it necessary to hand over considerable amount of legislative power for being exercised by subordinate agencies. The concept of the welfare state postulates the assumption by the State of the duty of fulfilling functions arid duties of afar‑reaching character, The growth of the modern technology, the swift progress of the modern fates in the industrial and economic fields, have forced Legislature to delegate a certain type of legislative function to the administration. The dogma, which prohibited the delegation of legislative authority, has been eaten away by a torrential impact of numerous exceptions which Judges have been constrained to concede; So much is this true that Professor Willoughby sums up the present position by observing ' The rule of the dogma has so many exceptions that it is difficult to decide whether the dogma or the exceptions state the true rule"‑ (Page, 176).' The present is not a case of abdication of its function by the: Legislature, but one where .the Legislature has relied upon a body which possesses the necessary expertise in the field to give effect to its intent and make the law effective and workable. It is therefore difficult to accept the contention that it is a case of excessive delegation.

13. Another limb of the same contention is that the scheme as well; as subsection (1‑A) of section 59 of the Ordinance enabled the Central Board of Revenue to discriminate between the assessees and for that reason too they are bad in law. This argument too is devoid of merit. At present when no writ for enforcement or fundamental rights can issue the right of equality before law cannot be enforced through the Court. Just as the schemes are not intended as traps for the tax‑payer they are also not an invitation to the tax‑payer to commit fraud upon the revenue. Therefore, the schemes have of necessity to make provision to guard against these two extremes. As already noticed, the Legislature has left the task of framing and operating the schemes to the Central Board of Revenue in view of the expert knowledge it possesses. That being so all that has to be seen is whether in selecting cases or classes of cases the Board has been discriminating between the assessees. In this regard it may at once be stated that the petitioners have not been able to point out how in picking up their cases the Board had exercised its power discriminately or unfairly. On the contrary we were informed on behalf of the Board without any contradiction by the petitioners that only such trades, professions and industries were chosen where according to its past experience there had been a large scale evasion of income‑tax. As regards selection of individual cases for detailed scrutiny only those were picked up in which the returns prima facie appeared to be of doubtful accuracy. Even in such cases the criteria applied were:‑

(a) decline in income,

(b) decline in gross or net profits,

(c) decline in gross or net profits rates,

(d) decline in turn over,

(e) turn‑over‑liquidity ratio,

(f) stock‑turn over ratio,

(g) addition in assets,

(h) new firms,

(i) property income declared fur the first time, and

(j) information available on survey.

These criteria do not appear to be arbitrary, unreasonable or unfair. It is, therefore, difficult to agree with the petitioners that the schemes are being operated discriminately or that the power given to the Board under subsection (1‑A) of section 59 of the Ordinance is being arbitrarily exercised.

14. The next argument on behalf of the petitioners is that the selection of their cases for purposes of detailed scrutiny was illegal inasmuch as they were not given any opportunity of being heard before the selection was made. Thus they had been deprived of the valuable right of getting their returns accepted without examination. This constituted a violation of the principle of natural justice which principle was ordinarily to be read as part of every statute and statutory scheme dealing with the rights of citizens. On the face of it this contention appears to be very attractive. Admittedly, the schemes have been of great benefit and convenience to the tax‑payer inasmuch as they relieve him of the worry of getting his affairs probed into and save him for repeated visits to the office of the income‑tax authorities with his books of account and other related papers which necessarily involve wastage of time. To deprive him of the benefit of the schemes and to subject him to the ordeal which assessment proceedings ordinarily entail without giving him an opportunity .of being heard would ex facie seem to be unfair and a violation of the principle of natural justice that 'no one should be condemned without being heard'. But then there is the other side of the picture as well. We were informed on behalf of the Board that a list of returns, which prima facie raise suspicion with regard to their accuracy is prepared at the level of the Commissioners of Income‑tax. This list is then sent to the Regional Commissioner who scrutinizes I: and reduces the number of cases, which may be picked up for detailed scrutiny. The list thus reduced is once again examined by him in collaboration with the Chief of Taxes, a senior official of the Central Board of Revenue, and a further reduction in the number of cases to be picked up is made. It is then sent to the Board for approval. Consequent upon this detailed and meticulous, procedure not more than 5% of the total returns are picked up for detailed scrutiny. In fact in some of the years under consideration the percentage of cases picked up was as low as 2%. Admittedly, more than a hundred thousand returns are filed each year under the schemes. If 5% of the cases are selected for detailed scrutiny and this, does not appear to be an unduly large number if the tax evasion that is ripe it, taken into consideration, there will be finally upward of 5000 such cases. There is a time schedule for the completion of assessment under the schemes. The returns are required to be filed in most cases before the first day of October (See section 55(2) of the Income‑tax Ordinance). We are informed that examination of the returns and selection of cases for detailed scrutiny is not completed before the following February.

15. It was contended on behalf of the Board that if before the selection for detailed scrutiny was made show‑cause notices were required to be given to the assessees concerned in every case. There will be more than 5,000 cases each year before the Board, which was responsible for the final selection. It will almost be impossible to conclude the task of completing the assessments before the end of the financial year when a fresh batch of about the same number would again arise for a similar exercise. Thus the schemes, which have been universally acclaimed as beneficial to the assessees might be set with so many unsurmountable difficulties as to make them impracticable. Further, there was the likelihood that in response to the show‑‑cause notices the assessee would raise objections entailing enquiries, which might more conveniently be postponed till the task of detailed scrutiny began. In any event it will be almost impossible for the Central Board of Revenue to dispose of about five thousand cases before the end of the financial year. The practical difficulties to which the learned counsel for the Board has referred cannot be denied or overlooked. It is to be noticed that finder subsection (4) of section 59 the Legislature has fixed a time for 'finalizing the assessments under a Self‑Assessment Scheme. It lays 'own that no order under subsection (1) shall be made in any case after the thirtieth day of June of the financial year next following the income year in respect of which a return of total income has been furnished under section 55. The Legislature must have been aware of almost the impracticability of concluding the assessments under the self‑Assessment Scheme in the event a show‑cause notice was required to be given before a case was selected for detailed scrutiny. By laying of a dead line by which the assessments were to be concluded under a scheme the Legislature appears to have precluded such a requirement by necessary intendment. For this reason the authorities cited as Commissioner of Income‑tax v. Fazlur Rehman P L D 1964 S C 410 and Commissioner of Income‑tax v. Hejvery Agencies P L D 1984 Lah. 401 are distinguishable and are not attracted here. It may also be mentioned that the selection of his case for detailed scrutiny dot's not preclude an assessee from showing in the regular assessment that follows that the return as filed by him under the scheme truly represented his income in the relevant year. Thus, the selection does not automatically saddle him with a tax burden, which does not legally fall upon him. We are also not impressed by the argument that the Income‑tax Officer would heavily tax those whose cases are picked up to meet the target departmentally allocated to them. We would, therefore, repel the contention that as the petitioners were not given an opportunity of being heard before their cases were selected for detailed scrutiny the notices issued to them are illegal.

16. Under paragraph 6 of the Self‑Assessment Schemes several categories of cases have been granted immunity for detailed scrutiny. It was contended on behalf of some of the assessees that their cases were covered by this immunity. It is to be noticed that certain facts must exist before immunity can be claimed. It is not appropriate for us to determine whether those facts exist or not. It will be in the fitness of things if the petitioners who seek ' immunity should appear before the Income‑tax Officer concerned to canvass their claim. No doubt the Income‑tax Officer will hold an inquiry to find out whether the conditions necessary for claiming immunity are satisfied in their cases or not. In case the petitioners are dissatisfied with the findings of the Income‑tax Officer in this regard they will have departmental remedies available to them. We are, therefore, not prepared to comment upon the claim of the petitioners or record any finding thereon even before the Income‑tax officers concerned have had the opportunity to examine them.

17. For the reasons stated above we dismiss these petitions but snake too order as to costs.

M. B. A. Petitions dismissed.

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