Show-Cause Notice

Petitioner / Province of Sindh was aggrieved of decree passed in favour of respondent / plaintiff declaring that allegation of lifting of wheat from sea port and embezzling wheat bags was not proved by authorities

Validity

Nothing was brought on record to show that flour mills had filed any complaint before any forum with regard to non-delivery of imported wheat bags, which as per allegation were misappropriated by respondent / plaintiff

Petitioner / authorities could not establish any financial loss to Provincial Government for the reason that wheat bags were allowed to be lifted on submission of pre-paid challans by four mills before relevant authority against bilties (waybills) issued by Food Department to such effect

No suit or proceedings whatsoever were initiated by Food Department for recovery of missing bags of imported wheat or alleged financial loss against respondent / plaintiff or official of Food Department who were also issued show-cause notices on the same set of allegations

Supreme Court declined to interfere in judgment and decree passed by High Court in favour of respondent / plaintiff as the same did not suffer from any error or illegality

Petition for leave to appeal was dismissed and leave to appeal was refused.

Show cause notice depicted that neither the detail of commission of act or omission was provided, nor the proposed penalty or recommendations were provided in the notice

No provision of the PEEDA Act was provided under which petitioner was liable to be penalized upon proving of charges

Strict compliance of requirements was vital to avoid violation of principles of natural justice, as it would not only frustrate the requirement of giving him a reasonable opportunity to put up a defence but also amount to violation of his fundamental right to fair trial

Statutory ingredients must appear on face of notice and in absence of requisite allegations, the notice was void for vagueness

Neither inquiry officer inquired the signing authority of the order which granted promotion and selection grade, nor members of DPC were inquired, which depicted how proceedings were solely revolving against petitioner only and not in any other direction, that was a blatant violation of fair trial and ultimately principles of natural justice

Punishment to lower scale awarded to petitioner was for serving employees and not retired employees under PEEDA Act, thus, no recovery could be effected, as being penal it required a finding that petitioner's act or omission caused a quantified loss to exchequer after due inquiry and fair opportunity, however, no such finding existed, thus, retrospective deprivation and recovery of benefits long enjoyed on higher post was disallowed by Supreme Court

Withdrawal of promotion/selection grade and recovery under Section 4(1)(c) of PEEDA Act were declared without lawful authority and of no legal effect

Petition for leave to appeal was converted into appeal and allowed, in circumstances.

Plea raised by petitioner / company was that Civil Aviation Authority was an organ of Federal Government, therefore, services provided by petitioner / company were exempt from tax in terms of Cl. 5 of Schedule to Islamabad Capital Territory (Tax on Services) Ordinance, 2001

Validity

Petitioner / company was an independent third party contractor i.e. a joint venture

Tax was charged on "services provided" by petitioner / company pursuant to contract

Civil Aviation Authority was a government entity but it was not the "provider of services"

Petitioner / company assailed show cause notice which was not an adverse order

Show-cause notice provided an opportunity to petitioner / company to explain that tax in question could not be imposed

Petitioner / company could raise all grounds before the authorities

High Court declined to interfere in the matter

Constitutional petition was dismissed, in circumstances.

Later on authorities issued show-cause notice for recovery of surcharge for home consumption which was not levied earlier at the time of payment of duty and taxes

Petitioner / company assailed initial order imposing taxes and duties in year 2013

Validity

Orders requiring petitioner / company to make payment of duties and taxes was not assailed, therefore, such order could not be assailed at present stage

Issuance of any declaration by High Court would amount to nullifying those orders, which could not be done when no specific challenge was made to them

Petitioner / company filed appeal before Appellate Tribunal Inland Revenue

Proceedings against petitioner / company were initiated by issuance of show-cause notice for contravention of S. 83(2) of Customs Act, 1969

Appellate Tribunal Inland Revenue derives its jurisdiction from S. 194-A of Customs Act, 1969, and is a forum which can adjudicate matters of facts and law, rather it is the forum which has jurisdiction to examine questions of facts raised before it

Appellate Tribunal Inland Revenue is the forum to determine law where questions of law can be raised at any stage

Plea of no default could also be raised before Appellate Tribunal Inland Revenue as duties and taxes were paid in installments due to decision of Economic Coordination Committee of Federal Cabinet

High Court declined to issue any declaration regarding principal liability, as well as surcharge and direction for refund

Constitutional petition was dismissed, in circumstances.

In certificate filed along with present petition, it was stated to be the first Constitutional petition filed by petitioner before High Court on the subject matter

However this was untrue as earlier petitioner had filed a Constitutional petition before another High Court challenging same show-cause notice which had been assailed in instant petition

High Court declined to interfere in the matter

Constitutional petition was dismissed in circumstances.

Petitioners / taxpayers were aggrieved of show cause notices issued under S. 24(2) of Punjab Sales Tax on Services Act, 2012, by respondent / Authority, without assessment of liability

Validity

Intent behind provision of S. 52 of Punjab Sales Tax on Services Act, 2012, in connection with requisite inquiry was to bring on record justified footings and reasons for assessment of tax liabilities on basis of record

Impugned notices were bereft of requisite inquiry prescribed under the umbrella of Punjab Sales Tax on Service Act, 2012

Said notices were without strength of due inquiry and petitioners / taxpayers were not afforded opportunity of hearing

Objections raised by the petitioners / taxpayers in their respective replies were not given due consideration

High Court set aside show-cause notices, as the same could not be allowed to breath in field anymore

High Court remanded the matter to respondent / authority to first conduct due inquiry in terms of S. 57 of Punjab Sales Tax on Services Act, 2012, after ensuring submission of replies by all the petitioners / taxpayers

Constitutional petition was allowed accordingly.

Petitioners assailed show cause notices issued to them by the Authority (constituted under the Punjab Revenue Authority Act, 2012)

Plea raised by petitioners was that without framing of rules, the Authority could not exercise its jurisdiction

Validity

If the Legislature intended the Authority to appoint officers by firstly enacting rules in such regard, then no officer could either be appointed nor could he exercise jurisdiction unless the Authority had acted under the rules which were formulated for the purpose

High Court declared act of the Authority ultra vires in conferring jurisdiction upon officers to issue show-cause notices in respect of cases and areas

High Court set aside show-cause notices as the same had been issued incompetently, without lawful authority and were of no legal effect

Constitutional petition was allowed, in circumstances.

If rules referred to in show-cause notice were not alive, then such show-cause notice cannot be considered as a case of wrong provision of law.

Narration of facts in Show Cause Notice along with supporting evidence determines offence attracted in a particular case

Jurisdictional threshold required for issuing Show Cause Notice under S.36 of Sales Tax Act, 1990, attained importance because of disparate and contrasting character of mischief envisaged in two subsections of S. 36 of Sales Tax Act, 1990

Unless there was deliberate design or an agreement between persons to defraud tax department and the same was clearly and perspicuously laid out in Show-Cause Notice, mere mentioning of S. 36(1) of Sales Tax Act, 1990 or mentioning words "deliberate act" or "collusion" in Show-Cause Notice would not vest tax department with jurisdiction to invoke S. 36(1) of Sales Tax Act, 1990

Applicability of period of limitation was dependent on facts and circumstances of the case that under which subsection a case would fall when show cause notice was read into with the narration of facts so stated therein

Under law of limitation all were equal before law, whether a citizen or State, and if a law had prescribed period of time for recovery of money, after its lapse recovery was not enforceable through Courts

Requirement of registration under Drugs Act, 1976, had its own implication and merely for such reason it could not become entitled for exemption from sales tax solely on such ground and this was one of the requirements for claiming exemption from sales tax under SRO 598(I)/90 dated 7-6-1990 and SRO 553(I)/94 dated 9-6-1994

Primary condition required to be met was that of a medicinal preparation

This was lacking in the case of applicant / taxpayer, whereas, the product was classified under Pakistan Customs Tariff Code Heading 38.08 as a disinfectant

Issue of the product as to whether it was a disinfectant or a medicinal preparation was settled by classification ruling issued by WCO (World Customs Organization) and no exception could be drawn to such classification

Such classification was a matter of record since 1990 and was not applied retrospectively

Reference was disposed of accordingly.

Petitioner / Pakistan Stock Exchange Limited assailed show-cause notice issued under S. 23 of Sindh Sales Tax on Services Act, 2011, by respondent / Sindh Revenue Board for recovery of defaulted tax amount on petitioner's income arising from listing fee and exchange operation earned by it

Plea raised by petitioner was that respondent / Sindh Revenue Board could not influence or exert their provincial executive authority over petitioner since it was a body created in pursuance of subjects enumerated in Fourth Schedule to the Constitution having Federal Legislative domain

Validity

Scheme of legislative entries in Fourth Schedule to the Constitution regarding taxation is such that taxes on income, sales tax on purchase and sales of goods, duties of customs and excise etc. fall in the domain of Federation

Federal Legislature has no power to legislate in respect of sales tax on services even regarding those subject matters which are enumerated in Federal Legislative List to the Constitution, subject to strict trans-provincial application(Entry 3 and 13 of Federal Legislative List not pressed by petitioner)

Entry 49 enjoys a unique position as it shifts taxing power (for services) from the Federation to the Provinces and it recognizes scope and extent of the powers and creates a reconciled balance, which allows Federation and Provinces to operate in their own fields in harmony

High Court declined to interfere in show-cause notices in question as the same were issued having authority and legislative competence in such regard

Petitioner had already registered itself voluntarily with respondent / Sindh Revenue Board earlier and if any issues of "adjudication" and not competence, were raised or agitated by the petitioner, the same could be addressed by the authority concerned by issuing show-cause notices

Constitutional petition was dismissed, in circumstances.

Petitioner was allowed orderly allowance by the Court but the administrative department did not grant such benefit to the petitioner

Validity

Record reflected that the Court vide order dated 25.08.2021 referred the matter of the petitioners to the competent authority of respondents on the issue of inclusion of Orderly Allowance in pensionable emoluments of the petitioners under the law

Compliance report dated 24.01.2022 explicitly showed that the respondent-department in its 189th meeting decided that the date of applicability of the Orderly Allowance in the pension of retired Additional Directors (EG-07) shall remain the same and shall be without prejudice to the complete review of pay and allowances of Civil Aviation Authority's employees

Prima facie, the said findings of the respondent-department negated the basic spirit of the order dated 25.08.2021 passed by the Court, which could not be construed to be substantial compliance of the said order

Record did not reflect that respondent-department had obtained an interim order from the Supreme Court of Pakistan, restraining the Court not to implement the order passed by the Court

When this was the position of the case, the compliance report dated 24.01.2022 submitted by the respondent-department was to be rejected, warranting interference of the Court to take action against the alleged contemnors under Art. 204 of the Constitution

Show-Cause Notice was issued to the Contemnors for further proceedings.

When taxpayer if saddled with tax liability that is not disclosed in notice, such liability that is not sustainable.

If issuance of Show-Cause notice to an incumbent of a statutory position is allegedly without jurisdiction and in violation of statute, Constitutional petition is maintainable in circumstances.

Petitioner was appointed Chairman of Pakistan Science Foundation by President and assailed show-cause notice issued to him initiating disciplinary proceedings during which he was sent on forced leave

Validity

When President exercises functions conferred upon him by way of statute and not Constitutional functions, he acts as a persona designata and therefore is not bound to take advice from Cabinet or Prime Minister pursuant to Art. 48(1) of the Constitution

Any appointment would be in violation of the legislative intent if it is made by the President on the advice of Prime Minister pursuant to MP Policy under the garb of Art. 48(1) of the Constitution despite the fact that it is the President who is vested with the power of appointment by statute

Concerned authority in disciplinary matters was to exercise adjudicatory and quasi-judicial powers

President was not obligated to act on the advice of Cabinet or Prime Minister under Art. 48(1) of the Constitution in respect of disciplinary proceedings carried out against persons appointed by President under Pakistan Science Foundation Act, 1973

President could not even act on the recommendation of any other person or authority in respect of disciplinary proceedings

Power to remove petitioner / Chairman of respondent / Foundation could not be delegated by the President without the power to delegate conferred upon him by Pakistan Science Foundation Act, 1973

MP Policy was not sustainable under Pakistan Science Foundation Act, 1973 to the extent that it entailed delegation of President's quasi-judicial powers and was also not justifiable under Art. 48(1) of the Constitution

President was not obligated to act on the advice of Cabinet or Prime Minister in exercise of quasi-judicial powers conferred by statute or to even act on recommendation of any other authority or person with regard thereto

MP Policy to the extent that it empowered Secretary to initiate and conduct disciplinary proceedings (which were quasi-judicial in nature) against petitioner were not justified under Art. 48(1) of the Constitution

High Court set aside show-cause notice issued to petitioner as the same was without jurisdiction and void ab initio

Constitutional petition was allowed accordingly.

Formation of premature view does not make it a final decision and any correction of such view during show cause proceedings does not amount to a review of prior decision

Any tentative view on the basis of which a show cause notice is issued merges with final decision rendered at the end of show cause proceedings

Any correction or revision of view formed as a preliminary matter does not qualify as review of the prior decision.

Petitioner / taxpayer was aggrieved of show-cause notice issued under S.11(1) of Sales Tax Act, 1990, for violating the provisions of Ss. 2 (9), 3(1), 6 (2), 7 (1), 26 (1) of Sales Tax Act, 1990 read with R.18(9) of Sales Tax Rules, 2006, for non-payment of liability of and non-filing of sales tax returns

Plea raised by petitioner / taxpayer was that its case fell within the purview of S.11(6) and outside the scope of S. 11(1) of Sales Tax Act, 1990

Validity

Provision of S.11(1) of Sales Tax Act, 1990, could be invoked only against a person required to file a return under Sales Tax Act, 1990 i.e. registered person and the same did not visualize proceedings against those who were liable to be registered but not registered

Upon registration of a person, provision of S. 11(1) of Sales Tax Act, 1990, had become invocable against even for such period of default during which the person was liable to be registered and had furnished return under Sales Tax Act, 1990

In the absence of any apparent inconsistency or patent conflict within the provisions of subsection (1) and (6) of S. 11 of Sales Tax Act, 1990, plea of the petitioner regarding non-obstante nature of S. 11(6) of Sales Tax Act, 1990 was of little help to assail show cause notice under S.11(1) of Sales Tax Act, 1990

Constitutional petition was dismissed in circumstances.

No incriminating material was confronted in summons and no notice or proceedings under Ss. 18, 21 & 22 of Benami Transactions (Prohibition) Act, 2017, respectively were disclosed

Powers under S. 18 of Benami Transactions (Prohibition) Act, 2017, could be exercised only after taking cognizance of the matter under the law

At initial stage summons were not envisaged under S. 21 of Benami Transactions (Prohibition) Act, 2017

After insertion of Arts. 19A & 10A in the Constitution, it could not be termed as notice under S. 22 of Benami Transactions (Prohibition) Act, 2017

It was fundamental right of a person proceeded against under law that information regarding mandatory proceedings and necessary information/material requiring action under the law was duly provided and confronted in show-cause notice

Any notice proposing legal action under the law was not enforceable if it lacked mandatory details

High Court declared that summons for calling petitioner to give statement and affidavit was without jurisdiction and in absence of any lawful authority

Constitutional petition was allowed accordingly.

First proviso to S. 11(5) is mandatory in nature and failure to comply with it would render the order invalid.

Petitioner was income tax assessee, who called in question show-cause notices for tax period November 2013 to March 2018 and July 2013 to October 2013 respectively issued by Deputy Commissioner Inland Revenue

Plea raised by petitioner was that there was no lawful authority or jurisdiction to meddle with matters of adjudication so provided in S.11(2) of Income Tax Ordinance, 2001

Validity

Show-cause notices were issued by Deputy Commissioner Inland Revenue in accordance with law

High Court declined to interfere in the matter

Constitutional petition was dismissed, in circumstances.

Mere notice did not ordinarily give rise to any cause of action as it did not amount to an adverse order which affected rights of any party

Tendency to assail notices in Constitutional jurisdiction while bypassing statutory hierarchy of remedy and redress was deprecated

High Court declined to interfere in the notices issued by authorities to petitioners

Constitutional petition was dismissed, in circumstances.

Petitioners assailed show-cause notices on the ground that the notices were time-barred for the reason that they were to be governed by the limitation period of 5 years applicable to them when the respective monthly sales tax returns were filed and that subsequent amendment in S.23 whereby limitation period was enhanced to 8 years was applicable only on sales tax returns filed on or after the date of amendment of law

Validity

When the amendment in S. 23 was introduced, the original limitation period in respect of all the petitioners had not expired

Had the enhancement in limitation not been brought in S.23, petitioners could have been issued show-cause notices by the department

In such a situation, it was neither a case of past and closed transaction nor of accrual of any vested right in favour of petitioners

Constitutional petitions were dismissed.

No demand notice requiring payment of any alleged short levy can be issued without show-cause notice.

Before allegation of mala fides in fact could be allowed to be proved, such mala fides had to be pleaded with particulars

Apart from bald averment of mala fides, plaint did not give any particulars and allegation of mala fides which required no probe

Audit notice could have been discriminatory to plaintiff / taxpayer and offended his fundamental right under Art. 25 of the Constitution, if notice had not assigned any reasons

Notice had given plausible reasons for asking for documents under S.177(1) of Income Tax Ordinance, 2001 but plaintiff / taxpayer did not reply the notice

High Court declined to interfere in the matter as plaintiff / taxpayer did not attack grounds taken in the notice nor set up a case for discrimination

Suit was dismissed, in circumstances.

Issuance of show-cause notice is pre-requisite and cannot be dispensed with under any circumstances.

Before any action was taken, affected party was to be given a notice to show cause against proposed action and to seek his explanation, as the same was sine qua non of right of fair hearing

Any order passed without giving notice was against principles of natural justice and was void ab initio

Before taking any action, it was right of a person to know the facts, as without knowing facts of case no one could defend himself

Right to notice meant right of being known

Right to know facts of suit or case was to happen at start of any hearing and notice was a must to start a hearing

Notice was to contain time, place and date of hearing, jurisdiction under which case was filed, charges and proposed action against person

All such things were to be included in notice to make it proper and adequate

Whenever statute made it clear that notice was to be issued to party and if no compliance or failure to give notice occurred, the same had made that act void

Non-issue of notice or any defective service of notice did not affect jurisdiction of authority but had violated principles of natural justice

Cancellation orders passed by authorities were illegal, perverse to record and arbitrary

High Court set aside orders passed by authorities as the same were void and of no legal effect

Constitutional petition was dismissed, in circumstances.

Show-cause notice can only be impugned where the same is without jurisdiction and lawful authority, however, challenge to the show-cause notice cannot be made in constitutional petition on merits.

Petitioners sought directions to the authorities to withdraw their letters which were correspondence between departments regarding double verification of Export Goods Declarations from Customs Authority and challenged a show-cause notice issued in the name of petitioners wherein the concerned authority required them to appear before the Director for defending their stance

Validity

Correspondence could culminate into an executable order only when it reached the final decision-making authority in the department, gets its approval and the final order is communicated to the person concerned

Show-cause notice was mere initiation of proceedings and not the proceedings in itself and constitutional petition was not maintainable against it unless the same was without jurisdiction or suffered from patent legal defect

Constitutional petitions were dismissed.

Petitioner was to first establish that property held by him was not as Benamidar of other person, during the course of which proceedings status of the property-accounts would be determined

If it was found/established that property was held as Benamidar of other person, law was to take its course

Provision of S.2(31) of Benami Transactions (Prohibition) Act, 2017, was not to control and regulate Ss.21 & 22 of Benami Transactions (Prohibition) Act, 2017, conferring jurisdiction accordingly

Show-cause notice neither defeated purpose of Benami Transactions (Prohibition) Act, 2017, nor violated any provision thereof

Initiating Officer after performing its functions under S.22 of Benami Transactions (Prohibition) Act, 2017, was to draw up a statement of case for reference to Adjudicator having power to adjudicate in terms of S.24 of Benami Transactions (Prohibition) Act, 2017

Upon conclusion of such adjudication status of petitioner and property in question was to be conclusively settled

High Court declined to interfere in the matter as there was no jurisdictional defect nor there was any illegality made out by authorities

Any interference in exercise of Constitutional jurisdiction by High Court would prejudice remedy of appeal provided in terms of S.47 of Benami Transactions (Prohibition) Act, 2017, whereby appeal had to be heard by Division Bench of High Court

Constitutional petition was dismissed, in circumstances.

Petitioner was civil servant who assailed show-cause notice issued to him by authorities for proceeding against misconduct

Validity

Show-cause notice was merely a statement by department/organization against its employee to the effect that some of his act or acts constituted misconduct which called for disciplinary proceedings

Show-cause notice was a first step in compliance with requirements of 'due process'

Purpose of show-cause notice was to put concerned person on notice about allegation against him and provide an adequate opportunity to explain his position

If satisfied with explanation, authorized officer was under a statutory duty to terminate the proceedings

Interference by High Court at such stage of show-cause notice would stultified and retarded the adjudicatory process provided by law

Intermediate action or step in departmental disciplinary proceedings could not be assailed through Constitutional petition

Constitutional petition was dismissed in circumstances.

Earlier Classification Committee determined Classification of goods in question under HS Code 3824.9091 and it continued for a number of years till early year 2017 when Federal Board of Revenue withdrew its earlier letter and referred the matter once again to Classification Committee

Matter was referred by same person who had issued new Public Notice as its Chairman

Such was a question of interpretation which required much deeper appreciation

Classification of goods was not per se that easy to be determined as apparently on a number of occasions it was held that classification under HS Code 3824.9091 was correct

Not only show-cause notices were issued for alleged mis-declaration of classification code but so also fine and penalties were imposed

Such could not be a case of mis-declaration when all along until 12-06-2017 earlier Classification Ruling and communication were in filed and it was not that those Rulings were issued by any incompetent authority, rather it was done by same Classification Committee through its Chairman, having appropriate authority and jurisdiction as well as expertise for doing so

Classification of goods was question based on legal and factual determination and so also of interpretation of HS Codes and Customs Tariff, there could always be difference of opinion in interpreting the same

Such was not that it always was a case of mens rea and imposition of penalty if claimed HS Code was not accepted by Department

Customs own department as well as Federal Board of Revenue who determined and directed release of goods in claimed classification code of 3824.9091

In such case allegation of mis-declaration and imposition of fine and penalty could not be made out and could not sustain

High Court set aside all orders passed against importer

Reference was allowed accordingly.

Plaintiff assailed show cause notice issued by authorities on the plea that amount collected under heading of services and utility charges was not liable to entertainment duty

Validity

Term 'payment of admission' as provided under S.2(f)(iii) of Sindh Entertainments Duty Act, 1958, included any payment for any purpose, whatsoever, connected with an entertainment which a person was required to make as a condition of attending or continuing to attend the entertainment, which could be in addition to the entry ticket

Plaintiff could not charge additional amount as 'utility charges' to constitute a 'payment for admission' when such amount was charged from all those visiting the park alike

Argument that 'utility charges' for public facilities within the amusement park were separate and not subjected to levy was negated by S.3(2) of Sindh Entertainments Duty Act, 1958, as payment for admission to entertainment was made by means of a lump sum paid for any 'privilege, right, facility or thing combined with the right of admission

Entertainment duty was to be paid on amount of lump sum unless the government opined otherwise

Suit was dismissed, in circumstances.

Departmental notice may not ordinarily merit interference, unless it manifestly that it suffers from want of jurisdiction, amounts to abuse of process or is mala fide, unjust or prejudicial towards the recipient.

Jurisprudence on legality of show-cause notices was guided by principles of fairness and a person being put to notice ought to know allegation or charge against such person together with identification of consequences of infraction if sound true, along with being provided opportunity of answer such allegation / charge therein

Misstatement of provision of law within a show-cause notice or omission of provision of statute under which such show-cause notice was issued, in absence of additional circumstances / factors, rendering such show-cause notice incomplete or unfair for not clearly stating allegation, did not invalidate such show-cause notice.

Principles.

Plea raised by petitioner was that Pakistan Telecommunication Authority (P.T.A.) had no authority to initiate consultation process

Validity

Only notices for a consultative process had been issued to petitioner

No effective hearing took place before Pakistan Telecommunication Authority

No occasion had arisen for the Authority to have proceeded further, as petitioner rushed to High Court and obtained interim relief against continuation of proceedings before P.T.A.

If Pakistan Telecommunication Authority (P.T.A.) had an occasion to hear petitioner on its objection to P.T.A.'s jurisdiction, it could be possible that P.T.A. would have accepted the same

If objection regarding jurisdiction was accepted by P.T.A., the matter might have ended there

If P.T.A. found that it had the jurisdiction to proceed with the matter only then it could proceed further with the consultation process

No opportunity was provided to P.T.A. to effectively exercise jurisdiction vested in it for a decision on its own jurisdiction

High Court declined to entertain the petition at such premature stage, leaving it open to petitioner to approach P.T.A. and take such objections before it

High Court directed P.T.A. to consider and decide the same as a preliminary issue in accordance with law before proceeding with the matter on merits of the case

Petition was disposed of accordingly.

Petitioner was employee of Pakistan International Airline Corporation (PIAC) and was issued show cause notice for committing misconduct by submitting bogus educational certificate

Petitioner assailed issuance of show cause notice before National Industrial Relations Commission which petition was dismissed

Validity

PIAC did not act without lawful authority by carrying out a process for verification of its employees' educational certificates relied upon by the employees in order to gain employment or any other service benefit in PIAC

After the Education Board informed the Corporation that petitioner's Intermediate certificate was bogus, it was just and reasonable for the PIAC to have issued show-cause notice to petitioner and such was not an unfair labour practice

Constitutional petition was dismissed in circumstances.

Section 3 of Sales Tax Act, 1990, is indeed a charging section but under the said section if the appointing authority is officer of Inland Revenue

Section 6 of Sales Tax Act, 1990, defines mode and manners of collection of sales tax at import stage by the Customs Authorities and on supply by the manufacturer/seller, resultant it is not charging section instead a machinery section

Section 7 of Sales Tax Act, 1990, speaks about determination of tax liability at the time of filing of sales tax return under S.26 of Sales Tax Act, 1990, this is a machinery section as well

Section 33 of Sales Tax Act, 1990, contains penal clauses synonymous to S.156(1) of the Customs Act, 1969

Section 34 of Sales Tax Act, 1990, speaks about default surcharge to be paid upon establishing the charges under the charging sections

Likewise, S.148 of Income Tax Ordinance, 2001, prescribes the procedure for collection of Income Tax at import stage by the authorities referred therein

Meaning thereby that the said sections are independent under which no charge can be invoked.

One has to remain within the charter of show-cause notice, failure to do so renders the order so passed palpably illegal.

Section 33 of Sales Tax Act, 1990, contains penal clauses synonymous to S.156(1) of Customs Act, 1969 and can only be invoked for the contravention of the respective provisions of Sales Tax Act, 1990 and not the Customs Act, 1969

Section 148 of Income Tax Ordinance, 2001, prescribes the procedure for collection of income tax at import stage by the authorities referred therein, meaning thereby that the said sections are independent under which no charge can be invoked

Provisions of Sales Tax Act, 1990 and Income Tax Ordinance, 2001, can only be invoked for the contravention of the respective provisions of Sales Tax Act, 1990 and Income Tax Ordinance, 2001 and not for the Customs Act, 1969

Referred sections of Sales Tax Act, 1990 and Income Tax Ordinance, 2001, are independent and have no nexus whatsoever with any provision of the Customs Act, 1969

Issuance of show-cause notice by invoking irrelevant/erroneous sections of independent statute by unauthorized authority rendered the same void and of no legal effect.

Despite payment of all duties and taxes levied by authorities, goods in question were not released by Customs Authorities

Validity

No appeals were filed and customs authorities despite mandated under law instead assumed the powers under S.195 of Customs Act, 1969, and reopened valid assessment/clearance orders passed under the provisions of Ss.80 & 83 of Customs Act, 1969 & Rr. 438 & 442 of Customs Rules, 2001

Customs Authorities were not empowered to reopen valid assessment order passed by the authority defined in S.2(a) of Customs Act, 1969, in exercise of powers vested upon him through SRO 371(I)/2002, dated 15-6-2002

All officials acted without power/jurisdiction hence their actions were deemed to be without any lawful authority and as such ab-initio null and void

Importer was called upon to show cause notice for submitting reply online, for which no space was available in the developed software of CCS as was provided to importer in the module reading as ' Traders Reply'

Such show cause notice was transmitted on home page of importer and was only for information, not for submitting reply, if reply was warranted to be submitted, space would have provided which was not available

Such show cause notice was not served on importer as per the contemplation of Ss.155Q & 215 of Customs Act, 1969, rendering the order passed by authorities of no legal effect and void and ab-initio

Customs Appellate Tribunal set aside show cause notice and all reassessment orders passed by Authorities as ab-initio, null and void and maintained the assessment order as the same was correct in fact and law

Appeal was allowed in circumstances.

Importer was aggrieved of show-cause notice issued by Deputy Collector for recovery of taxes including sales tax and income tax, on the plea of mis-declaration

Validity

Clearance Collectorates did not have authority to collect Sales Tax and Income Tax at import stage in the capacity of collecting agent and could recover escaped / short payment paid Customs Duty and Regulatory Duty levied on imported goods under Ss.18, 18A, 18C & 202 of Customs Act, 1969, after due process of law

Customs authorities had no powers to adjudicate the cases of short recovery / evaded amount of Sales Tax and Income Tax falling within the ambit of S.11 of Sales Tax Act, 1990 and S.162(1) of Income Tax Ordinance, 2001

Show-cause notice and order in original were issued by Deputy Collector by encroaching powers of Assistant Collector

Nobody was allowed to usurp powers as defined of Adjudicating Authority

Rendering act of issuance of show-cause notice and passing of order in original without power / jurisdiction was ab initio null and void and coram non judice

No charge of mis-declaration on the basis of Valuation Ruling (VR) could be levelled as that least qualified to definition of 'direct evidence' warranted under law

Valuation Ruling (VR) was only for the purpose of assessment not for levelling charge of mis-declaration of value

Customs Appellate Tribunal set aside show-cause notice issued to importer as of no legal effect and based on no evidence

Appeal was allowed accordingly.

Show-cause notice ordinarily was not justiciable in Constitutional jurisdiction of High Court unless it was manifest that same suffered from want of jurisdiction, amounted to abuse of process of law and / or was mala fide, unjust or prejudicial towards the recipient.

Plaintiff assailed show cause notice issued by authorities for recovery of short levy of sales tax for year 2014 and onwards

Validity

"Import" and "supply" were two distinct transactions under Sales Tax Act, 1990

Sales tax was payable when either there was a taxable supply, or an import

Such two transactions were distinctly mentioned in charging section drawing an inference that those were not similar or identical transactions

Plaintiff was exempted from payment of sales tax in respect of goods in question under Entry No. 107 of Sixth Sched. of Sales Tax Act, 1990, for tax period 2014 onwards

Goods in question did not fall under Entry No. 29 of Sixth Sched. of Sales Tax Act, 1990

High Court set aside show cause notice for tax period 2014 onwards as the same was without lawful authority

Suit was decreed accordingly.

No jurisdictional defect or illegality had been pointed out by petitioner on part of respondent Revenue Board while issuing impugned notices and Board was competent to issue such notices

Petitioner, through impugned show-cause notices, had been provided opportunity to explain its stance and raise all legal and factual objections

High Court deprecated the tendency to challenge issuance of show-cause notices through Constitutional petitions

Constitutional petition, being not maintainable, was dismissed in circumstances.

Petitioner was aggrieved of issuance of show-cause notice and suspension of his Airline Transport Pilot License (ATPL) by Authority

Authority claimed that license qualifications of petitioner were doubtful and that an investigation was pending final decision

Validity

Petitioner could have filed appeal to Director-General of the Authority but he could not do so apparently for the reasons that he was not in Pakistan

Absence of petitioner did not justify not availing right of appeal provided as statutory remedy

Nothing was brought on record to show whether any inquiry or investigation was completed or any final order was passed in case of petitioner based on his own reply or suspension period was extended through any lawful order

Suspension of license had come to an end under tenets and edicts of Civil Aviation Rules, 1994 after elapsing of statutory period

High Court directed the Authority to complete investigation, if any, and pass final order in case of petitioner after providing ample opportunity of hearing to him

High Court also directed that renewal of ATPL license would be subject to final order of the Authority on show-cause notice

Constitutional petition was disposed of accordingly.

Show-cause notice must supply grounds/reasons in clear and explicit words to the taxpayer and the provisions of law being invoked against him

Failure on the part of taxing authority to specify the same renders the show cause notice as invalid.

Show-cause notice must supply grounds/reasons in clear and explicit words to the taxpayer and the provisions of law being invoked against him

Failure on the part of taxing authority to specify the same renders the show cause notice as invalid.

High Court under Art. 199 of Constitution ordinarily ought not to entertain a challenge to show-cause notice and only when proceedings pursuant to show-cause notice culminated in an order that a person aggrieved may challenge same under Art. 199 of Constitution provided there existed no alternate remedy in law

However, there existed exceptions and Constitutional petition against show-cause notice may be maintainable where impugned notice was without jurisdiction, non est, patently illegal; or issued with premeditation or without application of mind for extraneous reasons; where aggrieved person did not have any adequate or efficacious remedy; where issuance of show-cause notice violated Fundamental Rights and where there was an important question of law that required interpretation of any fiscal or substantive law.

General rule is that a Constitutional petition under Art.199 of the Constitution is not maintainable against show-cause notice

Certain exceptions existed against such general rule

Exceptions under which Constitutional petition against a show-cause notice is maintainable are where notice in question is without jurisdiction/lawful authority, is non-est in eyes of law, patently illegal, issued with premeditation or without application of mind for extraneous reasons; where aggrieved person does not have adequate and efficacious remedy; issues of show-cause notice violate any Fundamental Rights of aggrieved person and where there is an important question of law that requires interpretation of any fiscal law or any other substantive law.

Mere pendency of tax references was no bar for notice issuing authority to proceed further in the matter and/or petitioner agitated matter directly before High Court

High Court declined to exercise Constitutional jurisdiction under Art. 199 of Constitution

Constitutional petition was dismissed in circumstances.