2001 PLP 1203 (PTD)

Date of hearing: 5th December, 2000. IFTIKHAR MUHAMMAD CHAUDHRY, J.‑‑‑This petition for leave to appeal is directed against the judgment of the Peshawar High Court, Peshawar, dated 29‑4‑1999 passed in Writ Petition No. 1404 of 1999.

2. Precisely stated the facts of the case are that the respondent approached the Income Tax Authorities for exemption from the payment of income‑tax under‑sections 80‑CC and 80‑D of the Income Tax Ordinance, 1979 (hereinafter called as the Ordinance) for the reason that as per Notification No. S.R. O.60(1)/87 dated 22‑1‑1987, the industrialists who have established their industries in the Industrial Estate of Gadoon Amazai are ALSO exempted from the payment of the minimum + presumptive tax. The request so made by the respondent was not conceded to, as such, Writ Petition No. 1404 of 1999 was preferred by it, which has given rise to the instant proceedings.

3. Learned counsel for the petitioners contended that exemption from income‑tax was granted to the industrialists who established industries in the Industrial Estate of Gadoon Amazai as per Notification No. S.R. O.60(1)/87, dated 22‑1‑1987 by adding clause 122‑C in the 2nd Schedule of the Ordinance. He further stated that as far as section 6 of the Protection of Economic Reforms Act, 1992 is concerned, it has provided protection only to the assessees whose cases are covered by Notification No. S.R.O. 1283(1)/90, dated 13‑12‑1990 and S.R.O. 1282(1)/90, dated 13‑12‑1990. As far as S.R.O. 60(1)/87, dated 22‑1‑1987 is concerned, no protection has been provided to it under the Economic Reforms Act, 1992. Learned counsel further argued that the rule laid down in the case of Elahi Cotton Mill Ltd. v. Federation of Pakistan (PLD 1997 SC 582), in fact, has not been applied correctly by the learned Division Bench of the Peshawar High Court. According to him, as per its sub‑note (i) para. 57, only those assessees will be entitled .for the protection for payment of income‑tax; whose cases are covered under the Schedule to section 6 of the Protection of Economic Reforms Act, 1992 and the protection will not be available to any other assessee.

4. After hearing the learned counsel and having gone through the relevant notification's as well as the judgment of this Court in Elahi Cotton Mills Ltd., supra, we are inclined to grant leave to appeal, inter alia, to examine following questions:‑‑ (1). As to whether in' view of section 6 of the Protection of Economic Reforms Act, 1992 exemption from the payment of income‑tax under sections 80‑CC and 80‑D of the Ordinance will be available to the respondent? (2) As to whether clause (122‑C), which was incorporated in the 2nd Schedule of the Ordinance, by means of Notification S.R.O. 60(1)/87, dated 22‑1‑1987 will provide protection to the respondent from not making the payment of income‑tax under sections 80‑C and 80‑D of the Ordinance? (3) As to whether the rule laid down by this Court in Elahi Cotton Mills Ltd., supra has rightly been applied by the High Court keeping in view the fact of the case of the respondent? The office is directed to fix this appeal at an early date after soliciting necessary sanction from the Hon'ble Chief Justice, because decision of this case will affect number of cases pertaining to the industrial areas where vide S.R.O.60(1)/87, dated 22‑1‑1987 exemption from income tax has been given by issuing cl. (122‑C) in the Second Schedule of the Ordinance. Stay Application Subject to notice, operation of the impugned judgment of the Peshawar High Court, dated 29‑4‑1999 passed in Writ Petition No. 1404 of 1999 is suspended. Q.M.H./M.A.K:/F‑28/S Leave granted.