Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Levy of sales tax---Validity---No appeal was preferred by the petitioner against the levy of sales tax---Petitioner could not show that the impugned order was palpably without jurisdiction or mala fide---Contention of the petitioner was that remedy by way of appeal and; revision was not adequate---Held, appropriate writ could lie issued if the High Court was satisfied that no other adequate remedy was provided by law---Tendency to bypass the remedy provided under the relevant statute was deprecated.

Nizamuddin Ahmad v. Commissioner of Sales Tax 1971 SCMR 68; Hafiz Muhammad Arif Dar v. Income Tax Officer 1989 PTD 485 and Al-Ahram Builders v. Income Tax Appellate Tribunal and 1992 PTD 1671 ref.

I. H. Zaidi for Petitioner.

Jawaid Farooqi for Respondents.

Date of hearing: 5th November, 2002.

JUDGMENT

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---The petitioner is aggrieved with the assessment made by the respondent No.2, whereby Sales Tax has been levied on the import of machineries and has sough a declaration that it was without lawful authority. The petitioner has further sought direction for the refund of the amount of Sales Tax levied and realized in excess of 25 % of the consignments imported.

The learned counsel for the petitioner has conceded that no appeal was preferred by the petitioner against the levy of impugned Sales Tax. The learned counsel for the petitioner was directed to show, as to how the petition is maintainable when the remedy by way of appeal and revision has not been availed. The learned counsel for the petitioner is not able to satisfy us about the maintainability of the petition and has contended, that the remedy by way of appeal and revision was not adequate.

We are not persuaded to accept the contention.

A perusal of Article 199 of the Constitution of Islamic Republic of Pakistan shows that an appropriate writ can be issued if the High Court is satisfied that no other adequate remedy is provided by law.

In similar circumstances, the question of maintainability of Constitutional petition under Article 98 of the Constitution of Pakistan 1962 came for, consideration before the Hon'ble Supreme Court in the case of Nizamuddin Ahmad v. Commissioner of Sales Tax 1971 SCMR 68. In the cited case writ petition challenging the validity of an order of the Sales Tax Officer refusing an application for refund was dismissed by the High Court of East Pakistan Dacca. A larger Bench of the Hon'ble Supreme Court up held the judgment of High Court, East Pakistan dismissing the petition and his Lordship Mr. Justice Hamoodur Rahman, C.J. observed as follows:--

"Before we part with this appeal we must also point out that the petition under Article 98 of the late Constitution filed in the High Court by the appellant should have been rejected in limine on the ground that the appellant had not exhausted his remedies under the Sales Tax Act itself.

As already pointed out, from an order under section 27 of that Act an appeal and revision lay in the same manner as from the order of assessment under 'section 10 of the said Act. The appellant had not taken anyone of these steps from the order of the Sales Tax Officer. He had not, therefore, exhausted the alternative remedies available under the law."

In the case of Hafiz Muhammad Arif Dar v. Income Tax Officer 1989 PTD 485, this question came for consideration and the Hon'ble Supreme Court held as follows:-

"One of the conditions for grant of relief in writ jurisdiction, of the High Court is that the petitioner before it should not have any alternate adequate remedy. In the present case, a remedy by way of appeal, as mentioned in the impugned order, was such remedy. Therefore, it is correct that no relief could be granted to the petitioner under Article 199 of the Constitution."

This question again came for consideration before a Full Bench of Hon'ble Supreme Court in the case of Al-Ahram Builders v. Income Tax Appellate Tribunal 1992 PTD 1671. Mr. Justice Saleem Akhtar speaking for the Bench held as follows:--

"We may now revert to the question, whether the appellant was justified to file above Constitutional petition against the order of the Tribunal instead of invoking section 136 of the Ordinance for making a reference to the High Court. According to Mr. Rehan Naqvi a reference under the above provision would not have been adequate and efficacious remedy as it would have taken years before it could have been heard. The same could be true for a Constitutional petition. The tendency to bypass the remedy provided under the relevant statute to press into service Constitutional jurisdiction of the High Court has developed lately, which is to be discouraged. However, in certain cases invoking of Constitutional jurisdiction of the High Court instead of availing of remedy provided for under the relevant statute may be justified, for example when the impugned order/action is palpably without jurisdiction and/or mala fide. To force an aggrieved person in such a case to approach the forum provided under the relevant statute may not be just and proper."

A perusal of the above dicta laid down by the Hon'ble Supreme Court clearly shows that, the tendency to bypass the remedy provided under the relevant statute has been deprecated. The learned counsel for the petitioner is not able to show that, the impugned order is palpably without jurisdiction or mala fide.

In view of the above circumstances, it is held that, the petitioner: could assail the impugned order in appeal instead of invoking writ jurisdiction of this Court. Such course is not warranted in law and consequently, the writ petition stands dismissed.

M.B.A./P-63/K Petition dismissed.