LAHORE TEXTILE & GENERAL MILLS LTD., LAHORE VS FEDERATION OF PAKISTAN
1997 P T D 1054
[Supreme Court of Pakistan]
Present: Saleem Akhtar, Fazal Elahi Khan and Fazal Karim, JJ
Messrs THE LAHORE TEXTILE & GENERAL MILLS LTD., LAHORE and others
Versus
THE FEDERATION OF PAKISTAN through Secretary, Ministry of Finance, Islamabad and others
Civil Petitions for Leave to Appeal Nos.349 to 363-L, 367 to 372-L, 378-L, 385 to 393-L, 400 to 411-L, 436-L, 438-L, 461, 461-L, 444 to 456, 439 to 442-L and 425-L of 1995, decided on 24/04/1995.
(On appeal from the judgment passed by the Lahore High Court dated 22-1-1995 in Writ Petitions Nos.8430 of 1991, 11939 of 1992, 317 of 1993, 2284 of 1992, 11940 of 1992, 9120 of 1991, 8416 of 1991, 539 of 1993, 8009 of 1992, 11938 of 1992, 5515 of 1993, 8428 of 1991, 8417 of 1991, 8427 of 1991, 8421 of 1991, 8431 of 1991, 3871 of 1993, 3816 of 1993, 5514 of 1993, 8429 of 1991, 8418 of 1991, 1115 of 1994, 8122 of 1993, 7960 of 1993, 7962 of 1993, 7959 of 1993, 8120 of 1993, 7851 of 1993, 8121 of 1993, 5063 of 1993, 8125 of 1993, 14861 of 1991, 4725 of 1994; 1117 of 1993, 9015 of 1993, 2055 of 1993, 7469 of 1992, 4802 of 1992, 4686 of 1993, 308 of 1991, 7853 of 1993, 5541 of 1992, 1290 of 1993, 9128 of 1992, 8492 of 1992, 1289 of 1993, 2886 of 1992, 1384 of 1992, 8703 of 1991, 247 of 1991, 8722 of 1994, 17659 of 1993, 10573 of 1991, 17660 of 1993, 538 of 1993, 540 of 1993, 5387 of 1992, 266 of 1992, 263 of 1992, 5907 of 1993, 4971 of 1995, 4974 of 1995, 4972 of 1995, 4973 of 1995 and 9179 of 1991 respectively).
Income Tax Ordinance (XXXI of 1979)---
----Ss.80-C, 80-CC & 80-D---Civil Procedure Code (V of 1908), O.XXVII, R.1---Constitution of Pakistan (1973), Fourth Sched., Federal Legislative List, Part I, Item No.47 & Art. 185(3)---Repugnancy to the provisions of the Constitution---Vires of Ss.80-C, 80-CC & 80-D, Income Tax Ordinance, 1979 on the touchstone of Constitutional provision relating to Federal Legislative List---Leave to appeal was granted to consider whether imposition of income-tax on basis of "turnover" alone, without giving opportunity to tax subsequently adjusted with reference to his actual income, was a permissible exercise of legislative power of taxation as enjoyed by Federal Legislature in pursuance of item No.47, Federal Legislative List, Part I of the Constitution (Fourth Schedule)---Question bearing upon validity of Ss.80-C, 80-CC & 80-D, Income Tax Ordinance, 1979 would need construction of the Constitution, therefore, notice was issued to Attorney -General in terms of O.XXVII, R.1, C.P.C.---Interim order already made would remain in force and appeal involving finance of Federal Government would be heard at an early date.
Mian Saqib Nisar, Advocate Supreme Court instructed by Muhammad Aslam Ch., Advocate-on-Record for Petitioners (in all above Petitions).
Nemo for Respondents.
Iftikhar Ali Sheikh, Senior Advocate Supreme Court instructed by Sh. Salah-ud-Din, Advocate-on-Record for Petitioners (in Petitions Nos.448 to 454, 461 and 462-L of 1995).
Mian Muhammad Najamuz Zaman, Advocate Supreme Court instructed by M.A. Qureshi, Advocate-on-Record for Petitioners (in Civil Petitions Nos.444 to 447-L of 1995).
M. A. Qureshi, Advocate-on-Record for Petitioners (in Civil Petitions Nos.439 to 442-L of 1995).
S. Inayat Hussain, Advocate-on-Record for Petitioner (in Civil Petition No.425 of 1995).
ORDER
SALEEM AKHTAR, J.---Against the judgment impugned leave has been granted in Civil Petitions Nos.234, 235, 241, 244, 252, 255, 274, 275 and 179-L of 1995 in the following manner:---
"Leave to appeal is granted to consider whether the imposition of income-tax on the basis of 'turn over' alone, without giving an) opportunity to tax subsequently adjusted with reference to his actual income, is a permissible exercise of legislative power of taxation as enjoyed by the Federal Legislature in pursuance of Item No.47 of the Federal Legislative List, Part I, of the Constitution (Fourth Schedule).
(2) As the question raised will have hearing upon the validity of 'sections 80-C, 80-CC, and 80-D, Income Tax Ordinance, and need construction of- the Constitution notice be issued to the Attorney- General as required by Rule 1, Order XXVII, Civil Procedure Code.
(3) During the pendency of the appeals the interim order already made will remain in force.
(4) As the appeals involve the finance of the Federal Government these should be heard at an early date. "
2. Accordingly, we grant leave and pass interim order in the same terms. This appeal may be heard alongwith the appeals arising from the aforesaid petitions. Notice be issued to the Attorney-General.
A.A./L-100/SLeave granted.