Messrs KHYBER SPINNING MILLS, GADOON VS SECRETARY, REVENUE DIVISION, ISLAMABAD, 2002 PTD-FEDERAL-TAX-OMBUDSMAN-PAKISTAN 2646 (2002)

(a) Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000)‑‑‑

‑‑‑S.9(2)(a)‑‑‑Jurisdiction, functions and powers of the Federal Tax Ombudsman‑‑‑Pre‑condition for ouster of jurisdiction of Federal Tax Ombudsman was that the matter should be sub judice before any Court, Tribunal or Authority on the date when petition was filed under the Establishment of Office of Federal Tax Ombudsman Ordinance, 2000‑‑‑Authority had not been able to satisfy that petition for leave to appeal/appeal had been filed challenging the judgment of the High Court in the Supreme Court‑‑‑Complaint was filed on 31‑12‑2001 while the Authority moved and issued instruction for filing appeal to the Supreme Court on 16‑1‑2002 and their own showing the appeal had not been filed before the complaint was presented to the Federal Tax Ombudsman‑‑‑Representative of the Department was asked to state in clear terms and' provide proof whether petition for leave to appeal had been filed in the Supreme Court, but he was unaware and could not provide any particulars or any information about the same‑‑‑Objection to jurisdiction was misconceived in circumstances.

(b) Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000)‑‑‑

‑‑‑‑S.9‑‑‑Jurisdiction‑‑‑Claim of cost of litigation before High Court‑‑Cost of litigation was claimed before the High Court but the High Court refused to grant the same‑‑‑Interference by the Federal Tax Ombudsman did not seem proper in circumstances.

(c) Income Tax Ordinance (XXXI of 1979)‑‑‑

‑‑‑S.14‑‑‑Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), S. 9‑‑‑S.R.O. 108(I)/95, dated 12‑2‑1995‑‑‑Exemption‑‑‑Claim of exemption had been allowed by High Court‑Execution of High Court judgment‑‑‑Claim depended upon the execution of the judgment of the High Court‑‑‑Federal Tax Ombudsman recommended that if any stay had not been granted by the Supreme Court the Department should execute and implement the judgment of the High Court within a period of 30 days.

Haider Yahya and Nija‑ud‑Din, Law Officer for the Complainant.

Sadiqullah Khan, Deputy Collector, Peshawar for Respondent.

DECISION/FINDINGS

The petitioner a limited company has its factory in Gadoon Amazai, District Swabi engaged in manufacture of yarn out of man‑made fibre like Viscose, Polyester and Crylic which are imported. The complainant enjoyed exemption, which was withdrawn. The Government with a view to compensate issued S.R.O. 108(I)/95 dated 12‑2‑1995. The petitioner applied for obtaining the benefits under the said S.R.O. and a provisional certificate was also issued‑in terms thereof. The petitioners were not given benefit and the dispute involved whether the petitioners were entitled to the concession of the said S.R.O. w.e.f. 29‑10‑1995 onwards or from the commence ment of the S.R.O. dated 12‑2‑1995. As the petitioners were not able to get any relief they filed Writ Petition No‑879 of 1997 in the High Court of Peshawar, which was decided by judgment certified copy of which was delivered to the petitioners on 24‑12‑2001. It was held as follows:‑‑‑

"The S.R.O. is though enforced for a period of five years from the date of its issuance i.e. up to 12‑2‑2002, any industry covered under the S.R.O. within such period can ask for exemption which would be onward from the date of application and cannot be granted in the back date. The petitioner did not apply simultaneously for the issuance of S.R.O. 108 but has only applied on 15‑4‑1995, therefore, he will not be entitled to any exemption under S.R.O. 108 from 12‑2‑1995 to 15‑4‑1995. However, if the respondent's department issued provisional certificate not immediately after the application by the petitioner but on 28‑10‑1995 this `slackness' and lethargic attitude of the respondents shall not deprive the petitioner from the benefit of S.R.O. 108 from the date when he applied for it i.e. from 15‑4‑1995 up to the period when the respondents first issued provisional certificate i.e. 28‑10‑1995.

In view of the above, we hold that .petitioner is entitled to the benefit of S‑R .O. 108, dated 12‑2‑1995 from the date of its application i.e. 15‑4‑1995 onward which will also include period up to 28‑10‑1995. This writ petition is allowed in the above terms."

Without waiting for further progress in the matter the petitioner filed this petition in this Secretariat on 31‑12‑2001 praying cost and expense of the hearing of the petition in the High Court, legal charges miscellaneous charges and amount awarded for the period of six months and four days total being Rs.2,35,05,054.

2. In reply department has denied the claim on merits and pleaded that the judgment of the High Court was received in the office of Collector Customs; Peshawar and the Collectorate is, preferring an appeal in the Supreme Court of Pakistan. The matter is therefore, sub judice and no order for petitioner's claim can be passed. In this regard the respondents have annexed a copy of letter of the Collectorate of Customs, Peshawar, dated 16‑1‑2002 addressed to Secretary (S‑I), C.B.R. which reads as follows:‑‑‑

"This Collectorate has to file an appeal against the decision of the Hon'ble High Court in the august Supreme Court of Pakistan. Copy of the Hon'ble High Court's order is enclosed."

3. The learned counsel for the petitioner recounting the entire facts and contentions which were raised before the High Court contended that C.B.R. was at fault, its actions were illegal and dilatory and that the petitioners are entitled for compensation. Mr. Sadiqullah Khan denied the claim and reiterated what has been stated in the reply.

4. So far the merits of the case are concerned in the face of the judgment of the High Court no further comment can be made unless it has been set aside by the Supreme Court. Therefore, for purposes of this case the base line is the judgment of the High Court by which relief has been granted to the petitioners.

5. Mr. Sadiqullah contended that as the matter is sub judice the petition cannot be investigated and the proceedings are without jurisdiction. Perhaps he had in mind the provision of section 9, subsection (2) of Establishment of Federal Tax Ombudsman Ordinance, 2000. Subsection 2(a) provides that the Federal Tax Ombudsman shall not have jurisdiction to investigate or inquire into matters which are sub judice before a Court of competent jurisdiction or tribunal or board or authority on the date of the receipt of a complaint. Therefore the pre‑condition for ouster of jurisdiction is that the matter should be sub judice before any Court, Tribunal or Authority on the date when petition is filed under the Ordinance. In the present case the respondent has not been able to satisfy that petition for leave to appeal/appeal has been filed challenging the judgment of the High Court in the Supreme Court. This petition was filed on 31‑12‑2001 while the respondents moved and issued instruction for filing appeal to the Supreme Court on 16‑1‑2002. On their own showing the appeal had not been filed before the petition was presented here. The learned representative of the department was asked to state in clear terms and provide proof whether petition for leave to appeal has been filed in the Supreme Court. He was unaware and could not provide any particular or any information about it. Therefore, the objection to jurisdiction is misconceived. Now coming to the merits, the claim is for cost enumerated in the petition. Most of the items relate to cost and. expenses, which were incurred in hearing before the High Court. Another claim is the amount to be awarded for the period of six months and four days. So far cost of litigation is concerned the petitioner had claimed it before the High Court but the learned Judge was not pleased to grant it. Therefore, to ask for it does not seem to be proper. The other claims depend upon the execution of the judgment of the High Court.

6. It is recommended:

(i) If any stay has not been granted by the Hon'ble Supreme Court the respondent/ Department to execute and implement the judgment of the High Court of Peshawar within a period of 30 days.

(ii) Compliance to be reported within 15 days thereafter.

C.M.A./M.A.K./391/FTO

Order accordingly.