Stay application

2016 PLC 289 NATIONAL-INDUSTRIAL-RELATIONS-COMMISSION Judicial Precedent

Ss. 31, 54(e) & 57(2)(c)National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)Petition for unfair labour practice by employersStay applicationJurisdiction of National Industrial Relations CommissionScope

Petitioner/ employee, who was office bearer of Federal/Labour Union in the employers Labour Union, claimed that he was born in 1958, and was to retire on attaining age of superannuation of 60 years in 2018, but employers being annoyed of his union activities had, threatened to retire him in 2015, taking year of his birth as 1955; which act of the employers, amounted to unfair labour practice

Assumption of jurisdiction of National Industrial Relations Commission for trial of the matter was dependent upon a prima facie case of unfair labour practice; but the facts narrated in the present petition, did not constitute a case of "unfair labour practice"

Jurisdiction of Commission was confined to the cases squarely falling within the scope of S.31 of Industrial Relations Act, 2012 and nothing beyond

Commission, had no jurisdiction in case of victimization on trade union activities by employee

In the present petition, no union activities, whatsoever had been mentioned to form the basis of the claim of unfair labour practice, except bald statement of apprehension

Petition, as such did not fulfil the requirements of S.54(e) of the Industrial Relations Act, 2012

Nothing was to indicate that the petitioner had been discriminated in respect of his retirement, especially when year of birth of the petitioner as 1955 had been established from his birth certificate and CNIC

All said facts had shown mala fide on the part of the petitioner/employee in filing petition

Employers, could not be said to be committing act of unfair labour practice and on merits also, the employee had no case

Petitioner/employee, having failed to establish case of unfair labour practice by the employers, not only stay application under Regln.32(2)(c) of National Industrial Relations Commission (Procedure and Functions), 1973, Regln.32(2)(c), was dismissed, but main petition also stood dismissed, in circumstances.

2014 PTD 1063 INLAND REVENUE APPELLATE TRIBUNAL OF PAKISTAN Judicial Precedent

S.46Income Tax Ordinance (XLIX of 2001), S.131(5)Appeal to Appellate TribunalStay application

Taxpayer contended that department was pressing hard for recovery and had issued notice showing intention to take coercive measures for the recovery of the outstanding tax demand; that in case the demand was not stayed, the taxpayer will suffer irreparable loss; and that taxpayer had full evidence to prove compliance of the law

Validity

Request for stay of demand was justified in circumstances

Recovery of tax demand was stayed by the Tribunal for a period of 30 days from the date of receipt of the order

Departmental order for recovery proceedings was vacated with the direction to the First Appellate Authority to preferably decide the pending appeal within 30 days as per law and facts of the case and till that time, the department was restrained from recovery proceedings

Application for stay was allowed without prejudice to the final outcome of the appeal which was pending before the First Appellate Authority.

2014 PTD 604 INLAND REVENUE APPELLATE TRIBUNAL OF PAKISTAN Judicial Precedent

Ss.46, 2(18), 30 & 57Income Tax Ordinance (XLIX of 2001), Ss.2(2) & 130Appellate Tribunal Inland Revenue Rules, 2010, Rr.9 & 13Civil Procedure Code (V of 1908), O.VI, R.15 & O.III, Rr.2Court Fee Act (VII of 1870), Sched. II, Art. 1Appeal to Appellate TribunalStay application

Deficiencies in stay application were that application had been filed without any instructions from the registered person, as it was not supported by any Authority letter or Power-of-Attorney from registered person; that through letter filed by an unauthorized person, it was alleged that the hearing of appeal never took place, whereas the record reflects that the appeal was heard, that presumption of truth attached to the official record unless proved otherwise; that contents of the rectification application were not supported by any duly sworn affidavit of the registered person; that application had never been signed by the registered person nor the same bore the seal of the public limited company/registered person; that no court fee had been affixed on the face of the application/letter; that application/letter had been addressed to the Registrar of Appellate Tribunal, which was contrary to the provisions of Ss.2(2) & 130 of the Income Tax Ordinance, 2001 and Rules of Appellate Tribunal; that application had been filed without impleading the necessary and proper parties; that application had been filed without annexing the necessary documents as required under R.11 of the Appellate Tribunal Inland Revenue and that application was filed under S.57 of the Sales Tax Act, 1990 and at the relevant time such provisions related to correction of clerical or arithmetical error in any assessment, adjudication, order or decision passed by the Officer of Inland Revenue

Expression "Officer of Inland Revenue" had been defined in S.2(18) of the Sales Tax Act, 1990 which meant an officer appointed under S.30 of the Sales Tax Act, 1990

Order passed by the Appellate Tribunal Inland Revenue could not be considered as order passed by the Officer of Inland Revenue and did not come within the ambit of the provisions of S.57 of the Sales Tax Act, 1990

Appellate Tribunal held that, in such circumstances, the application had not been filed by the registered person in accordance with the provision of law and the rules made thereunder and the same was dismissed being "not maintainable" and misconceived

Applicant company, however, may file a fresh rectification application after complying with the statutory provisions and rules made thereunder.

2014 PTD 604 INLAND REVENUE APPELLATE TRIBUNAL OF PAKISTAN Judicial Precedent

Ss.46 & 48(1)(b)Sales Tax Rules, 2006, R.71(2)(b)Appeal to Appellate TribunalStay application

Taxpayer had already availed stay period of 120 days granted by the Appellate Tribunal during the pendency of main appeal, but this fact was concealed in the present stay application

Main appeal had already been decided by the Appellate Tribunal and no appeal was pending adjudication

Application for stay was misconceived and the same was rejected by the Appellate Tribunal being devoid of merit.

2013 PTD 2250 CUSTOMS APPELLATE TRIBUNAL BENCH-III KARACHI Judicial Precedent

S.194-B(1)Orders of Appellate TribunalStay applicationPrinciple of mutatis mutandis

Appellant contended that during the hierarchy of customs before the Additional Collector of Customs as well as the First Appellate Authority, the subject matter pertaining legal and factual controversy were not to be taken up in accordance with the law and that the case was decided arbitrarily without applying judicious mind only on the principle of mutatis mutandis and disposed of the matter without discussing the factual as well as legal controversies

Validity

Customs authorities were required to pass separate orders in each case and the litigant had a right to contest their case, which should be disposed of on its legal and factual positions separately

Application of principle of mutatis mutandis was depricated

Action taken by the Department against the appellant in the subject pending appeal was violative of S.194-B(1) of the Customs Act, 1969

Appellant had established the prima-facie case, balance of convenience was also in favour of appellant which should also cause irrecoverable loss to the appellant

Appellate Tribunal directed that department should not take any coercive action against the appellant till the next date of hearing.