Amendment in law

Petitioner / candidate was aggrieved of election for the seat of Mayor of Metropolitan Karachi, by show of hands in view of an amendment made by Provincial Government just a few days prior to the election

Validity

Local Government is a statutory construct which operates under Provincial Government

Local Government system is a statutory construct and operates on the basis of enactments by Provincial Government

Amendment made by Provincial Government were well within its legislative competence

Election for the concerned posts / offices indirectly could not be termed as against democratic norms

In terms of S.18A of Sindh Local Government Act, 2013 any candidate participating in the election for subject posts is elected by show of hands thereby directly or indirectly elected by the Elecoral College, chosen representatives of the people

High Court declined to interfere in election process, as amendment in question was not ultra vires to the Constitution

Constitutional petition was dismissed in circumstances.

Although the Legislature can legislate prospectively and retrospectively, such power is subject to certain constitutional and judicially recognized restrictions

According to the canons of construction, every statute including amendatory statutes is prima facie prospective, based on the principle of nova constitutio futuris formam imponere debet, non praeteritis (which means 'a new law ought to regulate what is to follow, not the past'; unless it is given retrospective effect either expressly or by necessary implication

In other words, a statute is not to be applied retrospectively in the absence of express enactment or necessary intendment, especially where the statute is to affect vested rights, past and closed transactions or facts or events that have already occurred

This principle (s) is attracted to fiscal statutes which have to be construed strictly, for they tend to impose liability and are therefore burdensome (as opposed to beneficial legislation)

Furthermore, it is not only the wording/text of the statute which is to be considered in isolation; it has to be examined holistically by considering several factors such as, the dominant intention of the legislature which is to be gathered from the language used, the object indicated or the mischief meant to be cured, the nature of rights affected, and the circumstances under which the statute is passed.

Legislation should not be treated as changing the substantive law in relation to events taking place prior to legislation coming into force unless such a construction is expressly or by necessary implication required by the language of the Act

No statute shall be construed so as to have a retrospective operation unless its language is such plainly to require such construction.

Whether the goods which were already imported by the petitioners before the said amendment, and said goods had reached territorial water of Pakistan would be subject to the new mechanism /amendment and the petitioners would be required to provide pay order instead of post-dated cheque for release of the said goods or the said goods would be released on payment of post-dated cheque?

Plea of the respondents / department was that S. 30 of the Customs Act, 1969 envisages for determination of the rate of duty on the day when the goods declaration is manifested

Validity

Said assertion is out of context because the present cases do not deal with any change in the rate of duty

Rate of duty is always provided in the charging section and the impugned amendment has neither affected any charging or even machinery provision of the Sales Tax Act, 1990, therefore, S. 30 of the Customs Tax Act, 1969, even otherwise has no application to the present cases

However, whether the goods of any of the petitioners have been manifested or otherwise, or the goods have reached the territorial water of Pakistan before 1st July, 2024, cannot be determined by the High Court ; so the matter is left to the respective Collectorate of the respondents to determine the same

Thus, High Court held / declare that the amendment made in Entry No. 151 through Finance Act, 2024 would not be applicable to those imports of the petitioners whereby they had imported their input/goods which had reached the territorial water of Pakistan/the goods were manifested prior to 1st July, 2024

Constitutional petitions were allowed accordingly.

Whether the goods which were already imported by the petitioners before the said amendment, and said goods had reached territorial water of Pakistan would be subject to the new mechanism /amendment i.e. the petitioners would be required to provide pay order instead of post-dated cheque for release of the said goods or the said goods would be released on payment of post-dated cheque?

Held, that Finance Act, 2024 neither affects the charging section nor the machinery section of the Sales Tax Act, 1990, however, it has only substantially changed the condition of the exemption prior to the Finance Act, 2024

One of the conditions in order to avail the said exemption is that against the imported goods the petitioners were required to provide the post-dated cheque as a security instrument which was substituted by the pay order

This substitution is indeed a temporary financial burden upon the importers

Finance Act, 2024, does not give any impression that it applies to any transaction which has taken place prior to 1st July, 2024

However, whether the goods of any of the petitioners has been manifested or otherwise, or the goods have reached the territorial water of Pakistan before 1st July, 2024, cannot be determined by the High Court ; so the matter is left to the respective Collectorate of the respondents to determine the same

Thus, High Court held / declared that the amendment made in Entry No. 151 through Finance Act, 2024, would not be applicable to those imports of the petitioners whereby they had imported their input/goods which had reached the territorial water of Pakistan/the goods were manifested prior to 1st July, 2024

Constitutional petitions were allowed accordingly.

Petitioners / companies were aggrieved of revoking of tax exemption certificates on the basis of amendment in S. 153(4) of Income Tax Ordinance, 2001 incorporated by Finance Act, 2024

Validity

Legislature is competent to make law on a particular subject and also has power to legislate such law on a particular subject with retrospective effect and can by legislative authorization even take away vested rights

When legislature give retrospective effect to a law, either by express provision or by necessary implication, no protection can be afforded to vested rights contrary to that law

When legislature enacts a law with retrospective effect, the person affected cannot plead imposition of a previously non-existent civil obligation as a ground for declaring such law invalid

There was no provision of Finance Act, 2024 that expressly or by necessary implication had given any retrospective effect or application to amended S. 153(4) of Income Tax Ordinance, 2001

Amendment in question could not be construed to affect exemption certificates issued in favour of petitioners / companies in accordance with the law existing at the relevant time

Amendment introduced through Finance Act, 2024 was applicable on all exemption certificates issued after its effective date i.e. 01-07-2024

High Court set aside order passed by authorities and petitioners / companies were held entitled to avail benefit of exemption pursuant to exemption certificates issued in their favour

Constitutional petition was allowed accordingly.

Provision of S. 214D of Income Tax Ordinance, 2001, under which subject notice was issued, was omitted by Finance Act, 2018 which took effect on 22-05-2018 while subject notice was issued on 08-11-2018 when the provision was no more in field

No right had accrued in favor of authorities at the time of issuance of notice in question

Selection for audit was not automatic or forthwith triggered upon happening of an event of default, as envisaged by S. 214A of Income Tax Ordinance, 2001 but upon latest discovery of information, incidentally when relevant provision of law was not available on the statute book

High Court declined to interfere, as the authorities failed to point out any illegality or legal infirmity in order passed by Appellate Tribunal Inland Revenue, which was well-founded

Reference was dismissed, in circumstances.

Parliament is aware of statutory positions and undertakes an amendment to alter the status, existing prior to amendment having taken place.

Petitioner assailed order passed by respondent whereby his retirement order was recalled with the direction to rejoin his official duty in terms of amendment made in S.12 of the Punjab Civil Servants Act, 1974, through the Punjab Civil Servants (Amendment) Act, 2021

Validity

Retirement order of the petitioner had been issued prior to promulgation of the Punjab Civil Servants (Amendment) Act, 2021

Punjab Civil Servants (Amendment) Act, 2021, did not apply retrospectively to the case of the petitioner

When the Legislature through an enactment altered the rights of parties by taking away or conferring any right of action, such amendment did not affect pending actions, unless provided in express terms within the enactment

General rule of common law was that the statute changing the law ought not to affect past events, unless the intention appeared with reasonable certainty to be understood as applying to facts or events that had already occurred in such a way so as to confer or impose or otherwise effect rights or liabilities which the law had defined with reference to the past events

Constitutional petition was allowed and the impugned order was set aside.

Civil Procedure Code (V of 1908), O. XVI, R. 1 [as amended by Lahore High Court, Notification No. 273/Legis/XI-Y-26 dated 15-08-2018]

Billing dispute

List of witnesses

Amendment in law

Civil Procedure Code, 1908, provisions of

Applicability

Petitioner/plaintiff filed suit for declaration and injunction disputing bill issued by respondent/ Company

Grievance of petitioner/plaintiff was that Trial Court held that list of witnesses was not to be filed by respondent/company

Validity

Trial Court was bound to follow provisions of Civil Procedure Code, 1908, in all matters which were not expressly excluded through provision of special procedure in Gas (Theft Control and Recovery) Act, 2016

Where Gas (Theft Control and Recovery) Act, 2016 did not provide special procedure to do a particular thing in a particular manner, provisions of Civil Procedure Code, 1908 were applicable

Once Petition for Leave to Appear (PLA) was granted, it was treated as a written statement as envisioned by C.P.C.

Summary procedure regarding trial of the suit was converted into ordinary procedure requiring Trial Court to frame issues and record evidence as provided in C.P.C. and Qanun-e-Shahadat, 1984 subject to the provisions of Gas (Theft Control and Recovery) Act, 2016

After grant of PLA, unless defendant failed to fulfill condition attached to it, if any, the only concession provided to the parties to the suit was permission or facility to file affidavits in respect of examination-in-chief of their witnesses

Suit and application for permission to submit list of witnesses were filed on 29-11-2017 and 24-01-2020, respectively and order in question was passed on 03-11-2020 when the amendment by Lahore High Court, Notification No. 273/Legis/XI-Y-26 dated 15-08-2018 had come into effect on 01-11-2020

Amendment was in the form of substitution in O. XVI, R, 1, C.P.C. was procedural, beneficial and curative in nature which was enforced before decision of the application, therefore, substituted text of O.XVI, R.1, C.P.C. was applicable

Provisions of Civil Procedure Code, 1908 were applicable to a suit instituted under section 6 of Gas (Theft Control and Recovery) Act, 2016 in all matters, where provisions of Gas (Theft Control and Recovery) Act, 2016 did not prescribe a special procedure regarding any aspect of the trial

Respondent/company was required to submit list of witnesses as provision of O.XVI, R. 1, C.P.C. was applicable to suit under S. 6 of Gas (Theft Control and Recovery) Act, 2016

Non-submission of list of witnesses did not bar respondent/company to produce its own witnesses for recording of evidence and production of documents on the date fixed by Trial Court for recording of evidence

High Court declined to interfere in the order passed by Trial Court

Constitutional petition was dismissed, in circumstances.

When law is changed/altered during pendency of proceeding, substantive right of parties are to be decided according to law as it existed at time when action was initiated unless legislature has made its intention clear that amendment will apply retrospectively

Exception to rule is that law beneficial to subject and procedural law can be applied retrospectively.

Authorities assailed order-in-appeal on grounds that amendment in law was declaratory in nature and could be applied retrospectively

Validity

After amendment in S. 7(2)(ii) of Sales Tax Act, 1990 it was necessary that input tax adjustment was available to such importer only who was owner of imported goods and should be registered with sales tax department

Prior to amendment, no such condition was imposed under law

Requirement, in circumstances, was that person, who was claiming input tax adjustment should be holder of bill-of-entry cleared by customs department under S. 79 or 104 of Customs Act, 1969 irrespective of fact that who was importer of goods used in finished product

Language of statute was clear that only holder of bill-of-entry could be sufficient for claiming input tax adjustment

Phrase 'showing his sales tax registration number' was inserted in statute by amendment, (2003) therefore, it was not necessary before the said amendment (1996) that importer should be registered with sales tax department

Such registration was made mandatory by subsequent amendment in S.14 of Sales Tax Act, 1990 through Finance Act, 1998

High Court declined to interfere in order-in-appeal as input tax adjustment was available to taxpayer on bill-of-entry issued to their unregistered sister concern

Reference was dismissed in circumstances.

Petitioners assailed insertion of S. 21F in Anti-Terrorism Act, 1997, and sought the same to be struck down from the statute as the same was harsh for convicts

Validity

Rise in terrorist acts in Pakistan from year 1997 up to 15-8-2001 when S.21 F was incorporated in Anti-Terrorism Act, 1997, prompted the legislature to make the amendment for deterrent purposes

Whether or not denial of remission was harsh for convicts under Anti-Terrorism Act, 1997, was not for High Court to pass judgment on such issue and was within the domain of legislature; it was the legislature in its own wisdom, reasons, aims and objectives in inserting S. 21F in Anti-Terrorism Act, 1997

Despite insertion of S. 21F in Anti-Terrorism Act, 1997, over 18 years ago, none of the three successive democratically elected legislatures deemed it fit to remove S. 21F from Anti-Terrorism Act, 1997, which was an indication that successive legislature were satisfied that S. 21F was justified in Anti-Terrorism Act, 1997

Provision of S. 21F of Anti-Terrorism Act, 1997, did not violate Arts. 4, 12, 13 or 25 of the Constitution and High Court upheld the provision of S. 21F of Anti-Terrorism Act, 1997

High Court, however, directed Anti-Terrorism Courts to exercise great care and caution in determining whether cases before them fell under Anti-Terrorism Act,1997, based on the requirements of S. 6 of Anti-Terrorism Act, 1997, as remissions were not applicable in cases under Anti-Terrorism Act, 1997 which concerned heinous offences having a special object and intent aimed at destabilizing the State and its institutions and cowering it citizens through installing in them a sense of fear and insecurity

In absence of ingredients of S. 6(1)(b) & (c) of Anti-Terrorism Act, 1997, cases were to be tried under ordinary criminal law

Provisions of S.6(1)(b) & (c) Anti-Terrorism Act, 1997, were pre-conditions which needed to be satisfied before S. 6 of Anti-Terrorism Act, 1997, could be attracted by virtue of the offences set out in S.6(2) of Anti-Terrorism Act, 1997

Constitutional petition was dismissed in circumstances.

Dispute between parties was with regard to apportioning of excisable service from non-excisable while claiming of refund of input tax

Validity

Any procedural amendment which affected vested rights was to operate prospectively

Amendments made in Sales Tax Rules, 2006 and S. 7 of Sales Tax Act, 1990 even if regarded as procedural, had adversely effected refund already taken by taxpayers and same could not be made applicable retrospectively and was to be applied prospectively

High Court answered questions formulated by department in negative

Reference was dismissed in circumstances.

Where any statutory law is changed there is a presumption that it affects change in legal rights to the extent provided by such amendment

Amending provisions have to be read along with un-amended provisions as they are part of the same Act.

Any amendment in law does not take away, empower, nullify or destroy a vested right which has attained finality and has become past and closed transaction.

Income Tax authorities reopened assessment orders on the basis of amendment made in S. 122(2) in Income Tax Ordinance, 2001, through Finance Act, 2009

Appellate Tribunal declared the amendment as prospective in nature

Validity

Time period of reopening of assessment order was extended under S. 122(2) of Income Tax Ordinance, 2001, and the amendment had no retrospective effect and would apply to cases in which assessment orders were passed after the date of legislation in question

Assessment orders which were passed or deemed to be passed under enabling provisions of S. 120 of Income Tax Ordinance, 2001, prior to 1-7-2009, the same would be 'closed and past transactions' 'qua' applicability of amended provisions, as valuable rights in favour of taxpayer had accrued

Amendment extending time period to amend assessment orders, in which 'rights' had matured into 'vested rights' could not be amended under extended period provided under S. 122(2) of Income Tax Ordinance, 2001, introduced through Finance Act, 2009

High Court declined to interfere in order passed by Appellate Tribunal

Reference was declined in circumstances.

Petitioner company was aggrieved of amendment introduced in R.6(1) of Federal Excise Duty and Sales Tax on Production Capacity (Aerated Water) Rules, 2013, with retrospective effect

Validity

Amendment would have "prospective" effect and could not be applied "retrospectively" for the reasons: Firstly that the S.R.O.140 did not expressly provided amendments introduced in the Rules to have retrospective effect; secondly that subordinate legislation could not operate retrospectively unless the parent law empowered it to do so and thirdly that rights already accrued in favour of a person under a valid law could not be taken away through subordinate legislation

Amendment introduced in R.6(1) of Federal Excise Duty and Sales Tax on Production Capacity (Aerated Water) Rules, 2013, whereby total adjustment of Federal Excise Duty and Sales Tax was ultra vires of Sales Tax Act, 1990 and Federal Excise Duty Act, 2005

Enhanced rates provided in R.4 of Federal Excise Duty and Sales Tax on Production Capacity (Aerated Water) Rules, 2013, would take legal effect from 28-2-2014

Petition was allowed in circumstances.

Plea raised by income tax authorities was that amendment brought in S. 122(2) of Income Tax Ordinance, 2001, in year 2009 had retrospective effect and it was applicable to assessment for Tax Year, 2004

Validity

Limitation as it stood at the time of filing of return would apply

Even procedural law could not take away vested and existing rights by applying it retrospectively unless such intention of legislation was expressed in unequivocal terms

Reference was dismissed in circumstances.

Where law is amended during pendency of an action, ase is required to be decided under old law unless specifically provided in the amended law.

Where law is amended during pendency of an action, case is required to be decided under old law unless specifically provided in the amended law.

When law is amended, it is assumed that a change is intended to be brought about.

Person basing his claim on such concept would have to rely on representation of public authority and its denial would be infringement of his right

Court would interfere only when decision of such denial was arbitrary, unreasonable, abuse of powers and against principles of natural justice and public interest.

Any right or vested interest accrued to a party under a law cannot be snatched away or curtailed by any subsequent amendment in law.

Contention that law having been amended during pendency of proceedings, Courts below should have given effect to law as amended and should have examined reasonable ness and bona fides of respondent landlord in seeking eviction

Amendment in law, held, prospective and not governing pending proceedings.-[Interpretation of statutes].