2001 PLP 185 (CLC)

Brief facts out of which the present writ petition arises are that the petitioner participated in the open auction held by respondent No.5 for the collection of toll tax at Ravi Bridge at Shahdara, Sagian Bridge for the period from 1‑7‑1997 to 30‑6‑1998. Petitioner bid was highest amounting to Rs.11,65,00,000 which was confirmed in favour of the petitioner by the respondent. Petitioner and respondent No.5 executed an agreement. Petitioner was directed to deposit the necessary amount including advance income‑tax at the rate of 5 % by virtue of the terms and conditions of the agreement executed between the parties. Brief facts out of which the present writ petition arises are that the petitioner participated in the open auction held by respondent No.5 for the collection of goods exit tax for the period from 1‑9‑1998 to 30‑6‑1998. Petitioner bid was highest amounting to Rs.8,05,00,000 which was confirmed in favour of the petitioner by the respondent. Petitioner and respondent executed agreement between themselves. Petitioner was directed to deposit the necessary amount including advance income tax at the rate of 5% by virtue of terms and agreement executed between the parties. Brief facts out of which the present writ petition arises are that the petitioner participated in the open auction held by respondent No.5 for the collection of tax on transfer of immovable property for the period from 1‑9‑1998 to 30‑6‑1999. Initially petitioner participated in the open auction but subsequently awarded the contract to the petitioner by the respondent through negotiation for amounting to Rs.2,42,61,691 which was confirmed by the competent Authority in favour of the petitioner by the respondent‑authority. Petitioner and respondent No.5 executed agreement. Petitioner was directed to deposit the necessary amount including advance income‑tax at the rate of 5 % by virtue of terms and conditions of the agreement. Brief facts out of which the present writ petition arises are that the petitioner participated in the open auction held by respondent No.5 for the collection of goods exit tax for the period from 16‑11‑1998 to 30‑6‑1999. Petitioner bid was highest amounting to Rs.5,28,00,000 which was confirmed in favour of the petitioner by the respondent. Petitioner and respondent No.5 executed agreement. Petitioner was directed to deposit the necessary amount including advance income‑tax at the rate of 5 % by virtue of the terms and conditions of the agreement. Brief facts out of which the present writ petition arises are that the petitioner was awarded contract by the respondent No.5 for the collection of tax on transfer of immovable property for the period 18‑12‑1998 to 30‑6‑1999 for Rs.1,73,63,

014. Agreement was executed between the parties. Petitioner was directed to deposit the necessary amount including advance income tax at the rate of 5 % by virtue of terms and conditions of the contract. Brief facts out of which the present writ petition arises are that the petitioner participated in the open auction held by respondent No. 5 for the collection of goods exit tax for the period from 1‑10‑1998 to 30‑6‑1999. Petitioner bid was highest amounting to Rs.13,00,00,

000. Petitioner and respondent No.5 executed agreement between themselves. Petitioner was directed to deposit the necessary amount including advance income‑tax at the rate Of 5 % by virtue of terms and conditions of the agreement. Brief facts out of which the present writ petition arises are that the petitioner participated in the open auction held by the respondents for the collection of toll tax fee Mari Pattan Bridge for the year 1997/98. Petitioner bid was highest amounting to Rs.724,00,786 which was confirmed in favour of the petitioner by respondent. Petitioner and respondent executed agreement. Petitioner was directed to deposit the necessary amount including. advance income‑tax at the rate of 5 % by virtue of terms and conditions of the agreement. Brief facts out of which the present writ petition arises are that the petitioner participated in the open auction held by respondent No.4 for the collection of toll tax at the new Ravi Bridge for the period from 1‑7‑1999 to 30‑6‑2000. Petitioner bid was highest which was confirmed in favour of the petitioner by the respondent. Petitioner and respondent executed an agreement. Petitioner was directed to deposit the necessary amount including advance income‑tax at the rate of 5 % by virtue of terms and conditions of the agreement. Brief facts out of which the present writ petition arises are that the petitioner was awarded the contract for collection of toll tax at Lahore Link Road Kala Shah Kaku and. Motorway Bound Traffic by the respondent for a period of six months for total consideration of Rs.20,202,222 agreement was also executed between the parties. Petitioner was directed to deposit the necessary amount including advance income‑tax at the rate of 5 % by virtue of terms and conditions of the agreement.

2. Mr. Maqbool Elahi Malik, Advocate for the petitioner contended that the lease money being not income as such 5 % advance tax as envisaged under subsection (7‑A) of section 50 of the Income‑tax Ordinance, 1979, cannot be claimed from the petitioner. In support of his contention learned counsel has placed reliance upon the interim order passed by the Honourable Supreme Court on 10‑5‑1999 in similar circumstances in Civil Petition No.533‑L of 1999. Learned counsel for the petitioner urged that section 50(7‑A) of Income‑tax Ordinance, 1979 was added through an Ordinance on 25‑6‑1981 when the Article 89 was held in abeyance by virtue of Article 2 of P.C.O. 1981 which was promulgated on 24‑3‑1981. The aforesaid addition of subsection (7‑A) of section 50 of Income‑tax Ordinance, 1979 is ultra vires of the Constitution. He further stated that explanation to the aforesaid subsection (7) of section 50 of the Income‑tax Ordinance, 1979 excluded the petitioner. Therefore, action of the respondent is without lawful authority. He further urged that the petitioner has only the right to collect Goods Exit Tax in terms of the agreement executed between the petitioner and respondent No.5. Daily collection is deposited with the respondent No.5 after one month and the said collection is not income of the petitioner. He further urged that tax is always on income and not on investment or expenditure. He further urged that action of the respondent is in violation of Articles 3, 4, 18, 24 and 25 of the Constitution of Islamic Republic of Pakistan and the law laid down by this Court in Zia‑Ullah Khan's case PLD 1989 Lah.

554. In support of his contention learned counsel has placed reliance upon an interim order passed by the Honourable Supreme Court on 10‑5‑1999 in similar circumstances in Civil Petitions No.532‑L and 533‑L of 1999. Ch. Muhammad Yaqub, Advocate and other Advocates of the petitioners adopted the arguments of Mr. Maqbool Elahi Malik, Advocate.

3. Mr. Shafqat Mehmood Chohan, Advocate for respondents submits that contentions of the learned counsel for the petitioners are not sustainable in the eyes of law as the law laid down by the superior Courts qua the controversy in question. He relied upon unreported judgment of the Division Bench of this Court passed in W.P. No.16358 of 1997 on 24‑9‑1998 in which the similar controversy was raised and repelled by the Division Bench in the aforesaid writ petition. He also relied upon Muhammad Ansar etc. v. Administrator, Town Committee, Kabirwala District Khanewal and 4 others 1999 YLR 950 and Bismillah & Co. v. Secretary, Government of the Punjab, etc. 1997 PTD

747. He also relied upon unreported judgment of this Court in W.P. No.26364 of 1998 which was decided on 25‑1‑2000. . He further submits that leave granting order is not judgment as the controversy between the parties has not been finally decided by the Honourable Supreme Court. He further relied upon Adam Khan Mirza v. Muhammad Sultan PLJ 1975 SC 21.

4. I have given my anxious consideration to the contention of the learned counsel for the parties and perused the record. It is admitted fact that petitioner executed agreement with the respondent No.5 of his own free‑will which contains the arbitration clause. Therefore, writ petition is not maintainable as the principle laid down by the Honourable Supreme Court in the following judgments: Ali Sher v. The State 1994 SCMR 1884 and Murad Ali & Company's case 1999 SCMR

121. On the basis of the law laid down by the Honourable Supreme Court in presence of Arbitration Clause in the agreement executed between the parties, the writ petition is not maintainable. The writ petition is also not maintainable on the well‑known principle of approbate and reprobate. I am fortified b‑ the judgment of the Honourable Supreme Court in Ghulam Rasool's case PLD 1971 SC

376. It is also settled proposition of law that the contract cannot be enforced through Constitutional jurisdiction as the petitioner has alternative remedies either to file a civil suit or invoke arbitration clause as mentioned above. I am fortified by the following judgments:‑‑ Shameer v. Board of Revenue 1981. SCMR 604, Pakistan Mineral Development Authority V. Pakistan Water and Power Development authority PLD 1.986 Quetta 181, The Chandpur Mills Ltd.'s case PLD 1958 SC 267, Messrs Momin Motor Company v. The Regional Transport Authority PLD 1962 SC

108. The present controversy has also been finally decided after examination of the relevant provisions of Income‑tax Ordinance, 1979 in the following case.‑‑ Bismillah & Co. v. Secretary, Finance Government of Pakistan 1997 PTD

747. The aforesaid proposition of law is also supported by the following Judgments:‑‑‑ Rehman Corporation, Hyderabad v. The Income‑tax Officer 1985 PTD 787, Trustees of the Port of Karachi v. Central Board of Revenue 1989 PTD 1048, Idara‑e‑Kissan v. Registrar of Trade Union etc. NLR 1995 Tax (Lahore) 51 = 1995 PTD 493, Muhammad Yunus v. Chairman, Municipal Committee, Sahiwal PLD 1984 Lah. 345, Messrs Sardarpur Tex Zahur Textile Mills, Mandiwalla Mauser Messrs Sh. Spinning Mills and , another v. Federation of Pakistan 1997 PTD 70, Bismillah & Company's case 1997 PTD 747, Muhammad Ansar's case 1999 YLR 950, Rehman Corporation, Hyderabad v. Income‑tax Officer, Mirpur Khas 1985 PTD 787 and Pir Muhammad v. Government of Sindh 1990 MLD

869. Unreported judgment of the Division Bench consisting of Mr. Justice Ishan‑ul‑Haq Chaudhry and Mr. Justice Sayed Najam‑ul- Hassan Kazmi in W. P. No. 16358 of 1997, decided on 24‑9‑1998. Unreported judgment of Single Judge in W.P. No.26364 of 1998, decided on 25‑1‑2000. It is also settled proposition of law that leave granting order by the Honourable Supreme Court is not judgment as the law laid down by the Honourable Supreme Court in Khairullah's case 1997 SCMR

906. The other contention of the learned counsel for the petitioner that section 50 (section 7‑A) is ultra vires of the Constitution has no force as the law laid down by the Honourable Supreme Court in the following judgments:‑‑ Miss Benazir Bhutto's case PLD 1988 SC 416 and Malik Ghulam Mustafa Khar's case PLD 1989 SC

26. In view of what has been discussed above, the writ petition is not maintainable and the petitioner has alternative remedies more than one as the law laid down by the Honourable Supreme Court in Muhammad Ismail's case PLD 1996 SC

246. I have already dismissed the writ petitions qua the similar controversy on the question of law in Muhammad Ansar's case (supra) 1999 YLR

950. It is settled proposition of law that previous decision should have been accepted as binding on me as per principle laid down by the Honourable Supreme Court in Muhammad Muzaffar Khan v. Muhammad Yousaf Khan PLD 1959 SC (Pakistan)

9. In view of what has been discussed above, these writ petitions have no merit and the same are dismissed. H.B.T./A‑62/L Petitions dismissed.