2017K6028 (PLP)
Messrs KASB BANK LIMITED through Muhammad Ali, Head of Financial Reporting Tax Versus DEPUTY COMMISSIONER INLAND REVENUE and 3 others
| Citation | 2017K6028 (PLP) |
| Forum / Court | Sindh High Court |
| Bench Members | Aqeel Ahmed Abbasi and Abdul Maalik Gaddi, JJ |
| Parties | Messrs KASB BANK LIMITED through Muhammad Ali, Head of Financial Reporting Tax Versus DEPUTY COMMISSIONER INLAND REVENUE and 3 others |
| Primary Law | (a) Federal Excise Act (VII of 2005), (b) Limitation Act (IX of 1908), 5. It will be advantageous to refer to few cases of the Hon'ble Supreme Court, wherein, the issue of maintainability of constitutional petition in fiscal/tax matters has been elaborately decided: |
Q1: What are the key laws and sections cited in 2017K6028 (PLP)?
This judgment primarily cites: (a) Federal Excise Act (VII of 2005), (b) Limitation Act (IX of 1908), 5. It will be advantageous to refer to few cases of the Hon'ble Supreme Court, wherein, the issue of maintainability of constitutional petition in fiscal/tax matters has been elaborately decided:, AQEEL AHMED ABBASI, J.---Through instant petition, the petitioner has impugned an assessment order passed by the Deputy Commissioner, Inland Revenue and has sought following relief(s): as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2017K6028 (PLP)?
The case was heard and decided by the Sindh High Court bench comprising: Aqeel Ahmed Abbasi and Abdul Maalik Gaddi, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2017K6028 (PLP) (Messrs KASB BANK LIMITED through Muhammad Ali, Head of Financial Reporting Tax Versus DEPUTY COMMISSIONER INLAND REVENUE and 3 others). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Anwar Kashif Mumtaz and Ammar Athar Saeed for Petitioner.
- On the last date of hearing i.e. 25.08.2016, learned counsel for the petitioner was confronted as to maintainability of instant petition on the following terms:--
- "Learned counsel for respondent has raised objections with regard to maintainability of instant petition on the ground that it has not been filed by an authorized person as no Board's Resolution has been attached with the Memo. of petition, and secondly, against the impugned order passed in the instant matter, statutory remedy of filing an appeal before the Commissioner (Appeals), Inland Revenue is already available to petitioner in terms of section 33 of Federal Excise Act, 2005 and the same cannot be bye-passed, as held by superior Courts in large number of reported cases.
- Learned counsel for the petitioner was inquired as to whether against the assessment order which is subject matter of instant petition, the petitioner has filed an appeal before the forum as provided under the statute, however, the learned counsel for the petitioner has requested for short adjournment to seek instructions in this regard and to assist this Court as to maintainability of instant petition on the next date of hearing.
- By consent, adjourned to 20.09.2016. Interim order passed earlier to continue till next date of hearing.
- 3. Attention of the learned counsel for the petitioner was drawn to the above order of the Court, in response to which, he has candidly submitted that in spite having communicated Court's order, neither the Board Resolution as required by this Court, has been supplied nor it has been informed as to whether, against the impugned assessment order, any appeal has been preferred by the petitioner before the Commissioner (Appeals), Inland Revenue or not. Learned counsel for the petitioner requests for further time to ascertain such facts and to assist this Court as to maintainability of the instant petition. Such request of the learned counsel for the petitioner at this belated stage in the instant matter, which is pending since 2014 before this Court, cannot be acceded, more particularly, when learned counsel for the petitioner was specifically confronted as to maintainability of instant petition on the last date of hearing.
Headnotes / Summary
S. 33
Constitution of Pakistan, Art. 199
Constitutional petition
Alternate and efficacious remedy
Taxpayer assailed assessment order passed by Deputy Commissioner, Inland Revenue in constitutional jurisdiction before High Court
Such order of Deputy Commissioner was appealable order and could be assailed by filing appeal under S. 33 of Federal Excise Act, 2005, before Commissioner (Appeals), within statutory period i.e. 30 days from the date of receipt of order
High Court depreciated tendency to approach High Court directly by-filing Constitutional petition under Art. 199 of the Constitution, by-ignoring and by passing statutory forums, except for valid reasons, including jurisdictional defect or some patent illegality manifest from record
High Court disapproved such practice, as it would render statutory forums and remedies redundant and would increase burden of Courts unnecessarily
High Court declined to interfere in assessment order in question
Constitutional petition was dismissed in circumstances. Messrs H.M. Abdullah s case 1993 SCMR 1195; Income Tax Officer and another s case 1993 SCMR 1108; Hyderabad Chamber of Commerce and Industry s case 1998 SCMR 206; Hafiz Muhammad Arif Dar s case 60 Tax 52 and Nagina Dal Factory s case 18 Tax 1 ref.
S. 14
Exclusion of time
Bona fide proceedings before a forum without jurisdiction
Scope
Petitioner aggrieved with order passed by authorities, assailed the same before High Court in Constitutional jurisdiction, instead of filing appeal as prescribed by relevant law
Effect
High Court directed the authorities to consider the period spent before High Court, if petitioner would intend to seek condonation of delay in filing of appeal. I.C.I. Pakistan Ltd. v. Federation of Pakistan and others 2006 PTD 778 rel. Muhammad Javed K.K. for the State. ORDER * The impugned order passed by the Respondent No. 1 may be graciously declared to be illegal and without lawful jurisdiction and barred the limitation. * The entire proceeding is in violation of Article 10-A of the Constitution of Pakistan.
4. We are of the opinion that instant petition is not maintainable as it has been filed against an assessment order passed by the Deputy Commissioner, Inland Revenue, under the Federal Excise Act, 2005, which is an appealable order, and can be assailed by filing an Appeal before the Commissioner (Appeals) under section 33 of the Federal Excise Act, 2005 within the statutory period i.e. 30 days from the date of receipt of the order. Tendency to approach this Court directly by filing constitutional petition under Article 199 of the Constitution, by ignoring and bypassing the statutory forums, except for valid reasons including jurisdictional defect or some patent illegality manifest from record, cannot be approved, as it will render the statutory forums and the remedies as redundant, and will increase the burden of Courts unnecessarily. (i) In the case of Messrs H.M. Abdullah (1993 SCMR 1195), when the notice under section 65 of the Income Tax Ordinance, 1979 was challenged through Constitutional petition, it was held that the assessee was not entitled to invoke the Constitutional jurisdiction of High Court and bypass the remedy available under the Ordinance, as any decision taken by the Income Tax Officer could have been challenged through appeal before the high forum and then in second appeal before the Tribunal, more particularly when the questions urged in the Constitutional petition, could be raised before the Income Tax Officer. (ii) In the case of Income Tax Officer and another (1993 SCMR 1108), when the action of income tax authorities in the form of notice under section 65 of Income Tax Ordinance, 1979 was challenged before the High Court in its Constitutional jurisdiction under Article
199. Such practice was disapproved by the Hon'ble Supreme Court, and mode of availing of alternate remedy even in tax matters, was suggested. (iii) In the case of Hyderabad Chamber of Commerce and Industry (1998 SCMR 206), order of the High Court dismissing Constitutional petition on the ground of availability of alternate remedy to the petitioner was maintained by the Hon'ble Supreme Court with the observation that High Court had rightly dismissed the petition on the ground of alternate remedy available to the petitioner. (iv) In the case of Hafiz Muhammad Arif Dar (60 Tax 52) it was held by the Hon'ble Supreme Court that one of the conditions for grant of relief in writ jurisdiction of High Court is that the petitioner before it should not have any alternative adequate remedy, where remedy by way of appeal was available against the impugned order, then no relief could be granted to the petitioner under Article 199 of the Constitution. It was further observed that amongst others petitioner can file a complaint and grievance application before the Federal Ombudsman who can provide effective redress as that forum has several attributes of a Court in many aspects of its powers and it can also move in a matter promptly whenever is needed. Further it does not suffer from some of the handicaps, due to the technicalities of procedural nature, which operate as impediments or thwart such like action by the Courts. (v) In the case of Nagina Dal Factory (18 Tax 1) it was held by the Hon'ble Supreme Court that when a statute, under which action is taken itself provides remedies, recourse must be had to those remedies first. Direct access to High Court for relief in its writ jurisdiction, thus bypassing the special forums, which are created by the special law itself, was considered not permissible.
6. Accordingly, we are of the opinion that instant petition is misconceived in law, hence not maintainable, which is hereby dismissed along with listed application. However, before parting with the above order, we may observe that if the petitioner has not, so far, availed such remedy against the impugned assessment order by filing an appeal under section 33 of the Act, before the Commissioner (Appeals), in view of the pendency of instant petition before this Court, the petitioner will be at liberty to approach such forum and may seek condonation of delay in filing the appeal for the period consumed during the operation of interim order in the instant case, whereas, such request of the petitioner will be considered by such authority in accordance with law as laid down by this Court in the case of I.C.I. Pakistan Ltd. v. Federation of Pakistan and others (2006 PTD 778). MH/K-23/Sindh Petition dismissed.