Income, Tax Ordinance (XXXI of 1979)---

----S. 80-C---Constitution of Pakistan (1973), Art.199---Charge of Income Tax under S.80-C of - the Ordinance---Recovery---Constitutional petition challenging the vires of S.80-C, Income Tax Ordinance, 1979 and praying for stay of recovery---Contention was that Income Tax Authorities, Appellate or otherwise, being not competent to strike down the provision of law, High Court was the only forum which could do so in exercise of its Constitutional jurisdiction---High Court, accepted the petition and restrained the authorities from effecting any recovery under S.80-C of the Ordinance from the petitioner in circumstances.

Gulistan Textile Mills v. Federation of Pakistan 1994 PTD 581 fol.

Muhammad Farogh Naseem for Petitioner.

Sheikh Haider for Respondent.

A. Aziz Khan, Dy. A.-G.

ORDER

ABDUR RAHIM KAZI, J.---This application has been moved by the petitioner with the prayer that the recovery of the income tax under section 80-C of the Income Tax Ordinance, 1979 be stayed, Mr. Sheikh Haider, Advocate -for the respondents has vehemently opposed this application and has submitted that in the present case the assessment has already been made and under section 129 of the Ordinance an appeal is provided. He has further submitted that the consequence of filing of appeal will be that the recovery would automatically stands stayed under section 85 of the Ordinance. He has further submitted that since another efficacious remedy is available, this petition would not be maintainable under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. He has further pointed out that in such case it is for the petitioner to approach department under the Ordinance. As against this Mr. Muhammad Farogh Naseem, Advocate for the petitioner has argued that in the present case the vires of section 80-C of the Income Tax Ordinance, 1979 are challenged and the Income Tax Authorities, Appellate or otherwise, would not be competent to strike down the law but it is only this Court which can do so in exercise of its Constitutional Jurisdiction. He has placed reliance on the case of Gulistan Textile Mills v. Federation of Pakistan 1994 PTD 581.

In view of the above judgment of this Court, we are inclined to allow this application. Accordingly, this application is accepted and the respondent are restrained from effecting any recovery under section 80-C from the petitioner.

M.B.A./I-246/K Petition allowed.