2020 PLP 808 (PTD)
NEXT CAPITAL LIMITED through Chief Financial Officer Versus The ASSISTANT COMMISSIONER and 2 others
| Citation | 2020 PLP 808 (PTD) |
| Forum / Court | Sindh High Court |
| Bench Members | Aqeel Ahmad Abbasi and Mehmood A. Khan, JJ |
| Parties | NEXT CAPITAL LIMITED through Chief Financial Officer Versus The ASSISTANT COMMISSIONER and 2 others |
| Primary Law | (a) Sindh Sales Tax on Services Act (XII of 2011), (b) Constitution of Pakistan |
Q1: What are the key laws and sections cited in 2020 PLP 808 (PTD)?
This judgment primarily cites: (a) Sindh Sales Tax on Services Act (XII of 2011), (b) Constitution of Pakistan as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2020 PLP 808 (PTD)?
The case was heard and decided by the Sindh High Court bench comprising: Aqeel Ahmad Abbasi and Mehmood A. Khan, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2020 PLP 808 (PTD) (NEXT CAPITAL LIMITED through Chief Financial Officer Versus The ASSISTANT COMMISSIONER and 2 others). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Emad-ul-Hasan for Petitioner.
- In the instant case, we would issue pre-admission notice to the respondents as well as Advocate General Sindh, to be served through first three modes, for 25.11.2019, only to examine the legal grounds agitated by the petitioner to the effect as to whether, in the absence of any specific entry in the 2nd Schedule to Sindh Sales Tax on Services Act, 2011, relating to consultancy services, sales tax under the Sindh Sales Tax on Services Act, 2011, can be charged from the petitioner as required under Section 3 of the Act, 2011, whereas, the petitioner may seek remedy against the Order-in-Original as referred to hereinabove by approaching the appropriate forum in accordance with law.
Headnotes / Summary
S.3
Constitution of Pakistan, Art. 199
Taxable service
Petitioner sought a declaration to the effect that the consultancy services provided by him were not liable to be taxed under S. 3 of Sindh Sales Tax on Services Act, 2011 as consultancy services were not listed in the Second Schedule and prayed for setting aside an order-in-original passed by Assistant Commissioner to that effect
Petitioner while adverting to the question of maintainability of constitutional petition in the presence of alternate remedy contended that similar question of law was pending adjudication before High Court in its Reference jurisdiction therefore alternate remedy of appeal against the order-in-original would be a futile exercise
Held; pendency of a legal question before the High Court in a Reference jurisdiction and similar treatment given by the departmental authorities to a legal controversy alone could not be considered as valid ground to abandon and bypass a statutory forum
High Court issued pre-admission notice to the respondents in order to examine the legal issue agitated by petitioner and directed the petitioner to avail appropriate remedy against the order-in-original, if so advised.
Art.199
Scope
Violation of Fundamental Rights
Aggrieved party, in appropriate cases, can approach the High Court by filing a constitutional petition against violation of Fundamental Rights or in order to agitate a constitutional point relating to legislative competence.
Judgment & Decree
Granted.
2. Granted subject to all just exceptions. 3-4. Through instant petition, the petitioner operating as a brokerage house, besides seeking declaration to the effect that the consultancy services provided by the petitioner, are not liable to tax under the Sindh Sales Tax on Service Act, 2011, on the grounds that consultancy services have not been prescribed under the Second Schedule to the Sindh Sales Tax on Service Act, 2011, for the tax years till June, 2014, has also impugned Order-in-Original No.715 of 2019 dated 11.10.2019 passed by the Assistant Commissioner Unit-12, S.R.B. for the tax year July - 2013 to June - 2014, with the request to set-aside the same. While confronted as to why the ONO has not been challenged before the statutory forum of Commissioner (Appeals), S.R.B, in terms of Section 57 of Sindh Sales Tax on Services Act, 2011, learned counsel for the petitioner has submitted that since similar legal issue is already pending before this Court in Spl. S.T.R.A. No.61/2016, which is fixed today for hearing at Sr. No.5, whereas, according to learned counsel, alternate statutory remedy of appeal against the aforesaid Order-in-Original will be a futile exercise, as the departmental authorities and the Appellate Tribunal Inland Revenue, have already decided such legal issue against the petitioner. We are of the view that pendency of a legal question before this Court in a reference jurisdiction, and similar treatment given by the departmental authorities to a legal controversy alone, cannot be a valid ground to abandon and bypass a statutory forum, which can otherwise decide such legal issue in accordance with law. However, in appropriate cases, an aggrieved party can approach this Court by filing a Constitutional Petition under Article 199 of the Constitution if there is violation of any fundamental right or if some constitutional point is agitated relating to the legislative competence and jurisdiction of legislative body has been challenged. In the instant case, we would issue pre-admission notice to the respondents as well as Advocate General Sindh, to be served through first three modes, for 25.11.2019, only to examine the legal grounds agitated by the petitioner to the effect as to whether, in the absence of any specific entry in the 2nd Schedule to Sindh Sales Tax on Services Act, 2011, relating to consultancy services, sales tax under the Sindh Sales Tax on Services Act, 2011, can be charged from the petitioner as required under Section 3 of the Act, 2011, whereas, the petitioner may seek remedy against the Order-in-Original as referred to hereinabove by approaching the appropriate forum in accordance with law. Office is directed to fix instant petition along with Spl. S.T.R.A. No.61/2016 on the next date. SA/N-61/Sindh Order accordingly.