2017 PLP 1119 (PTD)

IBAD-UR-REHMAN LOHDI, J.

By means of this order, I intend to dispose of W.P.No.283/2017 and W.P.No.284/2017 as in both the matters the question of law and facts are the same.

2. During pendency of the appeal of the present petitioner before the Commissioner (Appeals) Inland Revenue within the meaning of section 127 of the Income Tax Ordinance, 2001 (hereinafter to be called as "Ordinance") not only a restraint order in the shape of a direction to the respondent for withdrawal of recovery notice and recalling of de-freezing order of Bank accounts of the petitioner and directing the respondent not to continue with the recovery proceedings and also to stop the recovery proceedings till decision of the appeal and a further direction to the learned first Appellate Authority to take out of turn the appeal of the present petitioner has been prayed for through present Constitutional petition.

3. In view of section 128 (1A) of the Ordinance, the Appellate Authority is competent to stay the recovery of the subject tax. In case the taxpayer or the Commissioner is aggrieved of "an order" passed by the Commissioner (Appeals), such aggrieved person has been provided a further remedy of appeal before the Appellate Tribunal within the meaning of section 131 of the Ordinance. Subsection (5) of section 131 of the Ordinance provides a power to the Tribunal to grant a stay order.

4. A reference then after the disposal of the appeal by the Income Tax Appellate Tribunal, is available before this Court in view of section 131 of the Ordinance. The petitioner seems to be in undue and unholy haste, as he has filed the appeal before the Commissioner (Appeals) only on 23.01.2017 along with an application for grant of stay received in the office of Commissioner on 24.01.2017. Even the initial process may not have been concluded with the Appellate Commissioner when without awaiting any decision on the request of the petitioner for grant of injunction by the learned Commissioner (Appeals), the petitioner rushed to this Court by filing this petition on 28.01.2017 seeking the same relief which has already been prayed for by the petitioner before the first Appellate Authority.

5. Learned counsel for the petitioner has referred a number of orders passed by the learned Single Benches not only of this Court but also some other High Courts viz. W.Ps. Nos.1555/2003, 19173/2005, 3932, 7594 of 2009, 2732/ 2015 of this Court, Constitutional Petition No.283/ 1999 of learned Karachi High Court and W.Ps. Nos.4702, 4744, 4808 of 2016 and 24/2017 of learned Islamabad High Court, wherein some restraint orders were passed in the manner as has been prayed for by the petitioner in the present petition. I have gone through all the orders and am not impressed of any one of such order. The relief as was granted in the referred matters was in fact a result of non-consideration the above referred provisions of law which provide the remedies so prayed for by the petitioner through the present Constitutional petition from the Appellate forums i.e. Commissioner (Appeals) and Appellate Tribunal in Tax Hierarchy. I have also noted that all the referred orders which have been relied upon by the learned counsel for the petitioner in support of his contentions were passed mainly on the first date of hearing of the petition without taking into consideration of the import of Article 199(4)(b) of the Constitution of the Islamic Republic of Pakistan, 1973 which provides that where the making of an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or of impeding the assessment or collection of public revenues, the Court shall not make an interim order unless the prescribed law officer has been given notice of the application and he or any person authorized by him in that behalf has had an opportunity of being heard and the Court, for reasons to be recorded in writing, is satisfied that the interim order would not have such affect as aforesaid.

6. In view of ground (k) of the present petition, the petitioner has pleaded that he has no other efficacious or adequate remedy, hence this Constitutional petition has been filed. The petitioner may go through the referred Constitutional and legal provisions and after going through the same the petitioner may reconsider its such stance of having no other adequate remedy available to the petitioner.

7. From whatever angle, the case of the petitioner is examined, the petition does not seem to be having any substance. Being without substance and meritless, this petition is dismissed. MH/F-4/L Petition dismissed.