2022 PLP 824 (SCMR)

MUNIB AKHTAR, J.

This matter arises under the Income Tax Ordinance, 1979 ("1979 Ordinance"). It is very old, relating to the assessment years 1991-1992, 1992-1993 and 1993-1994, and appears to already have had three rounds of litigation up to the High Court. It is not necessary to give the details of any of the rounds or even to set out the facts and circumstances of the case. It suffices to note that the petitioner has been held to be an agent within the meaning, and for purposes, of section 78 of the 1979 Ordinance in respect of a non-resident consultant/contractor. The petitioner has all along strenuously challenged this determination, and as presently relevant contested the same by way of a revision petition before the concerned Commissioner under section 138 of the 1979 Ordinance. In the most recent round, which is the one which we are concerned, the Commissioner vide order dated 05.09.2017 ("order-in-revision") rejected the case put forward by the petitioner. This order, being non-appealable to the Appellate Tribunal, was challenged by means of a writ petition in the learned High Court (W.P. 134878/2018). The writ petition was dismissed vide the impugned order dated 19.12.2018 and that has led to the filing of the present leave petition.

2. Learned counsel for the petitioner submitted that the order -in-revision was simply a recycling of an earlier order that had been made in the exercise of the revisional jurisdiction, and without any proper application of mind. He submitted that the earlier order had been challenged by writ petition before the learned High Court in one of the earlier rounds, which had set aside the same and directed the Commissioner to decide the matter afresh. Learned counsel submitted that this was not done and, as noted, his case is that the earlier order was simply recycled in new form. This submission was not accepted by the learned High Court in terms of the impugned order. Learned counsel for the petitioner submitted that even if this submission had failed, the learned High Court ought to have considered the other grounds taken in detail in the memo of the writ petition. There, it was submitted, various grounds/questions of law had been set out to make the case that the petitioner had been wrongly held to be an agent. In this regard reliance was placed, inter alia, on sections 12(5) and 80AA of the 1979 Ordinance.

3. Learned counsel for the department on the other hand submitted that the matter has been properly dealt with in the impugned order and that the leave petition ought therefore to be dismissed.

4. We have considered the submissions as above and examined the record. It is common ground that an order in revision made by the Commissioner in exercise of the relevant jurisdiction both under the 1979 Ordinance (per the aforementioned section 138) as well as the present Income Tax Ordinance, 2001 (see section 122A) was and is not appealable before the Appellate Tribunal. The only way therefore to challenge the same was and is by way of a writ petition in the High Court. We have seen the memo of petition. It is correct that various legal grounds have been taken therein challenging the order-in-revision and in respect of the same certain questions of law have also been raised. Insofar as the ground actually considered by the learned High Court is concerned, viz its rejection of the petitioner's claim that the order-in-revision was simply a recycling of the earlier order that had been set aside, we are in agreement with the learned High Court that this is not correct. The order-in-revision cannot be characterized in the manner as submitted by learned counsel for the petitioner. To this extent there can be no cavil with the determination made by the learned High Court. However, we are of the view that after having rejected this particular ground the learned High Court ought to have considered the various other grounds and questions of law as set out in the memo of petition before it, rather than simply dismissing the writ petition solely on this basis. To this extent we are of the view, with respect, that the matter has not been properly dealt with. The High Court ought to have applied itself to the other grounds and questions of law as specifically taken in the memo of petition and given its findings on the same. 6.(sic.) In view of the foregoing we consider it appropriate that the matter be remanded to the learned High Court to consider those other grounds and questions of law as have been taken by the petitioner in its memo of petition. However, we clarify that the ground that the order-in-revision is non-speaking or is a simple recycling of the earlier order or has been made without proper application of mind (or any other similar ground) cannot be agitated or taken by the petitioner and to this extent the determination made by the learned High Court must be regarded as having attained finality. The respondent department will of course be entitled to take all such objections and defenses as are available to it in accordance with law.

7. Accordingly, this leave petition is converted into an appeal and is disposed off in terms that the matter stands remanded to the learned High Court for determination as stated above. MWA/P-6/SC Order accordingly.