2022 PLP 981 (PTD)

SYED ARSHAD ALI, J.

This consolidated judgment is aimed to dispose of instant Writ Petition as well as connected Writ Petitions because all the petitioners, who have allegedly established their industrial units in the erstwhile Federally Administered Tribal Area ("FATA"), claim exemption from payment of income tax/sales tax etc, which are reflected in their electricity bills. The particulars of the said Writ Petitions are as under:- S.No. Case Title

1. W.P. No. 452-P/2022 "M/s Qasim Shah Marble Factory Umary, District Bajur through proprietor Qasim Shah son of Abdul Aziz v. Federation of Pakistan, through Federal Secretary Finance and Revenue Division, Islamabad and others".

2. W.P. No. 453-P/2022 "M/s Imtiaz Khan Marble Factory Sheikh Kellay, District Bajur through proprietor Imtiaz Khan son of Muhammad Ghani v. Federation of Pakistan, through Federal Secretary, Finance and Revenue Division, Islamabad and others".

3. W.P. No. 454-P/2022 "M/s Muhammad Tufail Marble Factory Umary Kellay, District Bajur through proprietor Muhammad Tufail son of Aslam Jan v. Federation of Pakistan, through Federal Secretary Finance and Revenue Division, Islamabad and others".

2. It is the precise claim of the present petitioners that the petitioners have established Marble Factories in the erstwhile FATA and in view of the legal dispensation as reflected through SRO 1212(I)/2018 and SRO 1213(I)/2018 both dated 05.10.2018, the units of the present petitioners are exempt from levy of income tax/sales tax etc. The petitioner have also placed reliance on the judgment of this Court passed in Writ Petition No. 1881-P/2019 wherein it was held that the units which are established in the erstwhile FATA are immune from the payment of income tax and sales tax and even they do not require to apply for exemption certificate.

3. Arguments heard and record perused.

4. The precise claim of the present petitioners that the industrial units, which are located in the erstwhile FATA, are exempt from payment of income tax/sales tax etc in view of SROs 1212(I)/2018 and 1213(I)/2018 both dated 5.10.2018 and the fact that units, which were located prior to the commencement of the said SROs within the tribal area are immune from payment of income tax/sales tax etc. in view of the law laid down by the Apex Court in Pakistan through Chairman FBR and others v. Hazrat Hussain and others (2018 SCMR 939), Commissioner Income Tax, Peshawar v. Messrs Gul Cooking Oil and Vegetable Ghee (Pvt.) Ltd. (2008 PTD 169), Messrs Taj Packages Company (Pvt.) Ltd. through Manager v. The Government of Pakistan through Federal Secretary Finance and Revenue Division and 06 others (2016 PTD 203) has already been upheld by this Court in judgment passed in Writ Petition No. 1881-P/2019 dated 03.04.2019 and the subsequent judgment dated 13.11.2019 passed in Writ Petition No. 5356-P/2018.

5. The learned Deputy Attorney General assisted by the officials of Revenue Department have argued that the units of the present petitioners have been established after the issuance of aforesaid SROs, therefore, they are not entitled to the said concession. However, they have also argued that in this regard, the present petitioners have never approached the respondents to determine this issue. Even otherwise, the question whether the units of the present petitioners were established prior to the issuance of aforesaid SROs or later require a factual probe. When the present petitioners have not approached the appropriate officer of the Board of Revenue (Commissioner Inland Revenue) for deciding the case of his/their exemption, we in our constitutional jurisdiction cannot intervene as the essential fact whether the units were established prior to the issuance of SROs or subsequent requires recording of evidence. Hence, these petitions being not maintainable are hereby dismissed. However, the petitioners may apply to the worthy Commissioner Inland Revenue in this regard and when any such application is filed by the present petitioners, the worthy Commissioner shall decide the same within a month. MH/74/P Petitions dismissed.