2022 PLP 1491 (PTD)

The common facts pertinent herein are that the petitioners have assailed respective notices issued by the respondent Sindh Revenue Board ("SRB") merely seeking information ("Impugned Notices"). These petitions have been pending since, 2017 onwards and ad interim orders are also operating herein. Since the controversy has been represented to be common inter se, hence, these petitions shall be determined vide this common order. At the very onset the petitioners' learned counsel was confronted as to the maintainability of these petitions since no grievance was demonstrated to have arisen by receipt of notices seeking mere information. Petitioners' counsel insisted that since the services rendered by the petitioners, being dentists, could not be brought within the purview of the Sindh Sales Tax of Services Act, 2011 ("Act") hence, any notice thereunder was without merit. Learned Additional Advocate General cited ample authority1 to bulwark his argument that such notices were not amenable to adjudication in writ jurisdiction. SRB's learned counsel articulated that mere information had been sought from the petitioners and nothing adverse thereto had been done, however, the entire due process of law had been set at naught by the petitioners by recourse to the present proceedings, wherein ad interim orders remain in the field despite persistent absence of the petitioners' representation. Heard and perused, it is settled law that such notices ought not to be assailed in writ jurisdiction

2. In Dr. Seema Irfan, an earlier Division Bench of this Court sifted through of a myriad of authority from the commonwealth jurisdictions and maintained3 as follows:

15. A show-cause notice is delivered to a person by an authority in order to get the reply back with a seasonable cause as to why a particular action should not be taken against him with regard to the defaulting act. By and large, it is a well-defined and well-structured process to provide the alleged defaulter with a fair chance to respond the allegation and explain his position with reasonable timeframe that he has not committed any unlawful act or misdemeanor. Even in case of an adverse order, the remedies are provided under the tax laws with different hierarchy or chain of command. In the matters of show-cause, this court cannot assume a supervisory role in every situation to pass an interim order with the directions to the authority concerned to proceed but no final order should be passed till decision of the constitution petition or to suspend the operation of show-cause notice for an unlimited period of time or keep the matters pending for an indefinite period. By saying so, we do not mean that the show-cause notice cannot be challenged in any situation but its challenge must be sparing and cautious. This court in exercise of its extraordinary constitutional jurisdiction may take up writs to challenge the show-cause notice if it is found to be lack of jurisdiction, barred by law or abuse of process of the court of coram non judice and obviously in such situation, may quash it but not in every case filed with the expectation and anticipation of ad interim order by the assesse.

18. The lack of jurisdiction moans lack of power or authority to act in a particular manner or to give a Particular kind of relief. It refers to a court's total lack of power or authority to entertain a case or to take cognizance. It may be failure to comply with conditions essential for exercise of jurisdiction or that the matter falls outside the territorial limits of a court. The Abuse of process is the intentional use of legal process for an improper purpose incompatible with the lawful function of the process by one with an ulterior motive in doing so, and with resulting damages. In its broadest sense abuse of process may be defined as misuse or perversion of regularly issued legal process for a purpose not justified by the nature of the process. Abuse of process is a tort comprised of two elements: (1) an ulterior purpose and (2) a willful act in the use of process not proper in the regular conduct of the proceeding. Abuse of process is the malicious misuse or misapplication of process in order to accomplish an ulterior purpose. However, the critical aspect of this tort remains the improper use of the process after it has been issued. Ref. DeNardo v. Maassen, 200 P. 3d 305 (Supreme Court of Alaska, 2009), McCornell v. City of Jackson, 489 F. Supp 2d 605 (United States District Court, Mississippi, 2006, Montemayor v. Ortiz, 208 SW 3d 627 (Court of Appeals of Texas at Corpus Christi-Edinburg, 2006), Reis v. Walker, 491 F. 3d 668 (United States Court of Appeals, 2007), Sipsas v. Vaz, 50 AD 3d 878 (Appellate Division of the Supreme Court of the State of New York, 2008). whereas coram non judice is a Latin word meant for "not before a Judge," is a legal term typically used to indicate a legal proceeding that is outside the presence of a judge or with improper venue or without jurisdiction. Any indictment or sentence passed by a court which has no authority to try an accused of that offence is clearly in violation of the law and would be coram non judice and a nullity. When a lawsuit is brought and determined in a court which has no jurisdiction in the matter, then it is said to be coram non judice, and the judgment is void. Manufacturing Co. v. Holt, 51 W. Va. 352, 41 S. E.

351. Here in this case, the department has issued show-cause notices with the allegation that the petitioners have shown the other income also which is not possible as a full time teacher or a researcher employed in a non-profit education or research institution hence the petitioners have been confronted that their other income seems to be earned through clinical work and surgical procedures and for this reason they have been called upon to submit their response along with few documents which are much essential to resolve the petitioners entitlement to rebate or reduction in tax and this is being done on the basis of available documents came into knowledge of the Tax department through Aga Khan University case when they claimed rebate on account of their full time employees as teachers/researchers....

18. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice, the authority concerned may drop the proceedings and/for hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. This Court ought to be careful when it passes an Interim order to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition. Abstinence from Interference at the stage of issuance of show-cause notice in order to relegate the parties to the proceedings before the concerned authorities is the normal rule.

19. The whys and wherefores lead us to a finale that neither the show-cause notice has been issued without jurisdiction nor it can be considered an abuse of process of law nor it is totally non est. in the eye of law for absolute want of jurisdiction or coram non judice. Whether the show-cause notice was founded on any legal premises is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved person could approach the high court. A reasonable reading of show-cause notice does not unearth or establish that it is an empty ceremony nor an impenetrable wall of prejudged opinion in which a fair procedure with reasonable opportunity of defence may not commence or afforded so in our good judgment, the interference at the show-cause notice stage should be rare and in an exceptional circumstances but not in a routine manner. However a significant attribute cannot be disregarded that when a show-cause notice is issued then obviously a fair chance to contest must also be presided. In our Constitution, right to fair trial is a fundamental right. This constitutional reassurance envisaged and envisioned both procedural standards that courts must uphold in order to protect peoples' personal liberty and a range of liberty interests that statutes and regulations must not infringe. On insertion of this fundamental right in our Constitution, we ought to analyze and survey the laws and the rules/regulations framed thereunder to comprehend whether this indispensable right is accessible or deprived of? in case of stringency and rigidity in affording this right, it is the function rather a responsibility of court to protect this right so that no injustice and unfairness should be done to anybody, therefore, we direct that the respondent No.3 shall provide fair opportunity to the petitioners to defend the show-cause notice and with proper application of mind consider the grounds raised in the response to rebut the show-cause for which a clear provision is already convisaged and Integrated under subsection (9) of Section 122 of the Income Ordinance, 2001." The superior courts have consistently maintained that the merits of a notice ought to be agitated by the recipient before the issuing authority at the first instance. It is also established law that a mere notice does not ordinarily given rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party. The august Supreme Court has deprecated the tendency to assail notices in writ jurisdiction, while bypassing the statutory hierarchy of remedy and redress

4. In the facts and circumstances articulated by the petitioners' counsel before us no case of abuse of process and / or want of jurisdiction could be demonstrated, hence, no case for invocation of writ jurisdiction was made out. On the contrary the respondents' counsel placed before us a copy of an earlier Division Bench judgment of this Court in Dr. Faisal Akhlaq5 wherein a similar petition was dismissed with significant costs having been imposed upon the petitioner. In our opinion the ratio of Dr. Faisal Akhlaq is squarely applicable to the present facts and circumstances and the petitioners' counsel, upon being so confronted, articulated no cavil in such regard. Needless to state that we remain bound by the enunciation of law expounded in aforesaid pronouncement in view of the Multiline6 principles. In view hereof, these petitions are found to be misconceived and no case for invocation of the discretionary7 writ jurisdiction is made out before us, hence, these petitions are hereby dismissed along with all pending applications. MH/P-16/Sindh Petition dismissed.