Messrs INTERNATIONAL TANNERS & INDUSTRIES (PVT.) LTD., LAHORE VS FEDERATION OF PAKISTAN
2004 P T D 2180
[Lahore High Court]
Before Nasim Sikandar, J
Messrs INTERNATIONAL TANNERS & INDUSTRIES (PVT.) LTD., LAHORE
Versus
FEDERATION OF PAKISTAN through Secretary Finance, Government of Pakistan, Islamabad and 2 others
Writ Petition No.5246 of 1997, heard on /01/.
th
February, 2004 (a) Judgment‑‑‑--
‑‑‑‑ Per incuriam‑‑‑Effect of‑‑‑Challenge to‑‑‑Validity‑‑‑Even all the Judges of the High Court sitting together cannot declare a judgment of the apex Court to be per incuriam.
(b) Words and phrases‑‑
--‑Per incuriam‑‑‑Meaning of.
Concise Law Dictionary by Osborn, 1964 Edn.; Dictionary of English Law by Earl Jowitt, 1959 Edn. and Halsbursy's Laws of England, Third Edn., Vol.XXII, p.800 ref.
(c) Finance Act (XII of 1991)‑‑‑--
‑‑‑‑S. 12‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Judgment per incuriam, challenge to‑‑‑Petitioners challenged the vires of S.12 of Finance Act, 1991‑‑‑Issues being raised in the petition had already been considered by the Supreme Court in one of the cases‑‑‑Contention of the petitioners was that a number of issues which ought to have been raised before the Supreme Court were not raised and therefore, the judgment passed by the Supreme Court was per incuriam‑‑Validity‑‑‑Petitioners failed to come up with any authority which could directly or indirectly lead to a conclusion that a subordinate Court could hold a judgment of the superior Court to be per incuriam‑‑‑Interference with a judgment per incuriam was only for the author of judgment or for a higher strength in terms of number of Judges in a Bench‑‑‑Author of a judgment of a superior Court could record a finding that his earlier view was wrong on account of its being per incuriam‑‑‑Judgment sought to be declared per incuriam must by itself be under attack before a higher strength of Judges belonging to the same Court or a higher Court‑‑‑All the issues being raised by the petitioners in the Constitutional petition were found to be adequately considered by the Supreme Court, which had found the provisions of Finance Act, 1991 to be intra vires of the Constitution‑‑‑Issues which were decided by the apex Court stood settled once and for all‑‑‑Constitutional petitions were dismissed, in circumstances.
PLD 1997 SC 351; Young v. Bristol Aeroplane Company (1946) 2 All. ELR 293 and Messrs I.C.C. Textile Ltd. v. Federation of Pakistan and others 2001 SCMR 1208 ref.
(d) Wealth Tax Act (XV of 1963)‑‑‑--
‑‑‑‑Ss. 23 & 24‑‑‑Constitution of Pakistan (1973), Art. 199‑‑ Constitutional petition‑‑‑Assessment orders ‑‑‑Legality‑‑‑Jurisdiction‑‑‑Alternate remedy availability of‑‑‑Contention of the petitioners was that the assessment orders framed by the authorities to impose tax upon them were contrary to law‑‑‑Validity‑‑‑Complete hierarchy of forums had been provided in the statute for the petitioners to redress their grievance, therefore, the impugned assessment orders could not be made a subject‑matter of consideration in exercise of Constitutional jurisdiction.
Ashiq Hussain Mian, Muhammad Iqbal Hashmi; Syed Ibrar Hussain Naqvi, Sirajuddin Khalid and Syed Mansoor Ali Shah for Petitioner.
Muhammad Ilyas Khan and Shahid Jamil Khan for Respondents.
Date of hearing: 13th February 2004.
JUDGMENT
Through this Single judgment I intend to dispose of Writ Petitions Nos. 5246 of 107, 99 of 1993, 3541 of. 1994, 2521 of 1993, 2470 1993, 2520 of 1993, 2471 of 1993, 2472 of 1993, 8613 of 1996, 1507 f 1997, 2522 of 1993, 3491 of 1993, 6518 of 1993, 14647 of 1997, 14878 of 1997, 5247 of 1997 and 11857 of 1998.
2. These Constitutional petitions seek to challenge the vires of section 12 of the Finance Act, 1991. Through that provision a tax known as Corporate Assets Tax was levied on the assets held by a company on the specific date in some of the petitions besides challenging the vires of the said provisions, some assessment orders framed by the Wealth Tax Officer creating certain demands have also been challenged.
3. On being confronted that the issues being raised through these Constitutional petitions have already been considered by the Hon'blc Supreme Court of Pakistan in re: Messrs I.C.C. Textile Ltd. and others v. Federation of Pakistan and others (2001 SCMR 1208), learned counsel representing different petitioners attempt to distinguish their cases in order to establish that the ratio settled in that judgment is not attracted in their cases. As a general plea it is submitted that a number of issues which ought to have been raised before the Hon'ble apex Court were not raised by the learned counsel appearing in the Civil Appeals, which were decided by the Hon'ble Court through that judgment.
4. On the basis of the ratio settled in a judgment, from Indian jurisdiction re: Union of India v. Harbhajan Singh Dhillon 1972) 83 ITR 582, it is claimed that the very levy is ultra vires of Federal Legislature as well as the relevant entries of the Fourth Schedule Part‑I of the Federal Legislative List particularly Entry No.50. Some of the learned counsel have gone to the extent of describing the aforesaid judgment to be a judgment per incuriam and have attempted to cite the case law to bring home that a. new appraisal o: the issues involved can very well be made by this Court. Also a reference is made to the. case of re: Young v. Bristol Aeroplane Co., Ltd. (1944) 2 All ELR 293 which is stated to be the first authority settling the principles in cases of judgments which are per incuriam.
5. One of the learned counsel for the petitioners vehemently contends that since in the aforesaid judgment the issue as to the validity of form prescribed for filing of return and imposition of additional tax and penalty was not considered by the apex Court, these issues can very well be agitated now. One of the learned counsel also seeks to take an objection that a company listed on Stock Exchange has been made subject to the jurisdiction of a Wealth Tax Officer under the provisions of section 12 of the Finance Act, 1991, which is totally illegal and that the provisions of said tax are irrelevant to the extent of these kinds of Companies. In the view of the learned counsel particularly when no specific jurisdiction was conferred on the Wealth Tax Officer to lay his hands upon the companies listed on the Stock Exchange. It has also been stared at the bar that since only some of the provisions of Wealth Tax Ac; 1963 have been made applicable to the proceedings of charge, assessment and collection of the Corporate Assets Tax, a number of provisions of the Act including those for levy of additional tax and penalty could not be invoked while framing assessments of such tax. The definition of the word "company" as contained in section 12(2) of the Finance Act is also stated to be vague and insufficient. With reference to sub‑clause (8) of section 12 of the said Act it is again alleged that the additional tax contemplated in that para. could not be imposed even if the levy of Corporate Assets Tax is held to be a tax on value of assets. The absence of framing of rules to provide mechanism for filing of returns and collection of the levy its enforcement through different instructions and forms issued by the Central Board of Revenue without proper gazette notification is also described to be a legal flaw which ought to be interpreted in favour of the taxpayers. One of the learned counsel for the petitioners is also of the view that since the word "CBR" has not been defined in the impugned section 12 of the Finance Act, 1991 the Central Board of Revenue constituted under the Act of 1991 cannot automatically be assumed to have been vested with the powers contemplated under these provisions.
6. After hearing the learned counsel for the parties I will readily agree with the learned counsel representing the Revenue that all Judges of a High Court sitting together much less to say of a Judge in Chambers cannot declare a judgment of the apex Court to be per incuriam. The term "per inturiam" in Concise Law Dictionary by Osborn 1964 Edition is defined as "a decision of the Court which is mistaken". A decision of the Court is not a binding precedent if given per incuriam, i.e., without the Court's attention having been drawn to' the relevant authorities, or statutes." The Dictionary of English Law by Earl Jowitt, 1959 Edition defines the word "per incuriam" through want of care, a decision or dictum of a Judge which clearly is the result of some oversight." In Halsbursy's Laws of England, Third Edition, Vol. XXII, P‑800 as summarized by Mr. S.M. Zafar, Advocate in his book/Judge made Laws the subject has been treated as follows:‑‑
"A decision is given per incuriam when the Court has acted in ignorance of a previous decision of the House of Lords, of its own or of a Court. of coordinate jurisdiction which covers the case before it.
(2)A decision may also be given per incuriam when it is given in ignorance of the terms of same inconsistent statute or a rule having the force of a statute."
7. Learned counsel for the petitioners have not been able to cite any authoritative pronouncement which could directly or indirectly lead) one to a conclusion that a subordinate Court can hold a judgment of the, superior Court to be per inciruam. The principle that emerges from the case‑law on the subject appears very clear. It is that to declare a' judgment per incuriam is only for the author of a judgment or a higher strength in terms of number of Judges in a Bench. It would simply mean that the author of a judgment of a superior Court can record a finding that his earlier view was wrong on account of its being per incuriam. That very finding can be recorded by a Bench of two or three Judges in respect of a judgment recorded by a Single Judge of that Court. To me it appears that in such like situation the judgment sought to be declared per incuriam must by itself be under assail before a higher strength of Judges belonging to the same Court or a higher Court. Where a judgment is only cited as a precedent before the same Court irrespective of the number of Judges, it can be refused to be followed on the ground that it is contrary to the dictum laid down by a higher Court. In PLD 1997 SC 351 a judgment of High Court contrary to the law laid down by the Supreme Court was held to be per incuriam. Before a superior Court not only the impugned judgment but also any other judgment cited to, support that judgment can very well be declared to be per incuriam if the most important condition namely that it was recorded when the Court's, intention was not drawn to an earlier authoritative precedent or the, provision of a statute is satisfied.
8. These principles appear to be settled right from the first'; authority on the subject which is relied upon by the learned counsel for' the petitioners re: Young v. Bristol Aeroplane Company (supra). In the following para. of that judgment which was confirmed by the House of Lords in (1946) 1 All ELR 98 the principle was discussed by Lord Greene M.R. (1944) 2 All ELR 293 in these words:‑‑
"In considering the question whether or not this Court is bound by its previous decisions and those of Courts of coordinate jurisdiction, it is necessary to distinguish four classes of cases.
The first is that with which we are now concerned, namely, cases where this Court finds itself confronted with one or more decisions of its own or of a Court of coordinate jurisdiction'. which cover the question before it and there is no conflicting decisions of this Court or of a Court of co‑ordinate jurisdiction.; The second is where there is such a conflicting decision. The' third is where this Court comes to the conclusion that a previous decision, although not expressly overruled, cannot stand with al subsequent decision of the House of Lords. The fourth (a special; case) is where this Court comes to the conclusion that a previous decision was given per incuriam. In the second and third classes of cases it is beyond question that the previous decision is open to examination. In‑the second class, the Court is unquestionably entitled to choose between the two conflicting decisions. In the third class of cases the Court is merely giving effect to what it considers to have been a decision of the House of Lords by which it is bound. The fourth class requires more detailed examination and we will refer to it again later in this judgment.
Where the Court has construed a statute or a rule having the force of a statute, its decision stands on the same footing as any other decision on a question of law, but where the Court is satisfied that ' an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the, position is very different. It cannot, in our opinion, be right to "say that in such a case the Court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples of decisions given per incuriam."
9. Coming to the judgment of the Hon'ble Supreme Court of Pakistan in re: Messrs I.C.C. Textile Ltd. v. Federation of Pakistan (supra) I am of the view that all issues being raised at the bar were adequately considered by the Hon'ble apex Court. In para‑1 of the judgment, Iftikhar Muhammad Chaudhry, J, speaking for the Bench identified the following seven issues to be considered:‑‑
(1)"Whether a levy known as "Corporate Assets Tax" imposed vide section 12 of the Finance Act, 1991 by the Federal Legislature, could be charged on the basis of gross value of assets inclusive of liabilities, under Item 50 of the Fourth Schedule read with Articles 77, 141, and 142 of the Constitution of Islamic Republic of Pakistan, 1973?
(2)Whether the levy of "Corporate Assets Tax, in respect of value of assets held by a Company on a specified date" as envisaged under section 12 of the Finance Act, 1991 falls within the legislative competency of the Federal Legislature?
(3)Whether the "Corporate Assets Tax" could be co‑related to Article 70 of the Constitution and Entry No. 50 of the Federal Legislative List is contained in the Fourth Schedule to the Constitution of 1973?
(4)Whether the "value of assets" implied gross value is distinct from and exclusive of the liabilities of the company as shown on the balance sheet?
(5)Whether the levy is discriminatory as well as confiscatory?
(6)Whether the demand of levy and or imposition of additional tax or imposition of penalty could be made by officer of Wealth Tax under the Wealth Tax Act, 1963 in the absence of Rules to be framed under section 12 of the Finance Act, 1991?
(7)Whether the demand of levy and or imposition of additional tax or imposition of penalty could be made by officer of Wealth Tax under the Wealth Tax Act, 1963 in the absence of conferment of power by the Central Board of Revenue as per provision of the Finance Act, 1991 and or the Wealth Tax Act, 1963?
10. A careful reading of these issues makes it clear that none of the submissions made by the learned counsel for the petitioners as reproduced above can possibly be said to have not been dealt with in the aforesaid judgment. The learned apex Court not only found the said provisions of the Finance Act to be intra vires of the Constitution but also held that the mode adopted by the Central Board of Revenue for the purpose of collection was not open to exception. These issues having been decided by the apex Court stand settled once for all.
11. As far the challenge to the assessment orders framed in respect of some of the petitioners, it is sufficient to observe that the impugned provision itself provides for a complete hierarchy of forums to be approached in first and second appeal or for the purpose of revision. Therefore, these assessment orders cannot be a subject‑matter of consideration in exercise of Constitutional jurisdiction.
12. These Constitutional petitions shall be dismissed.
M.A.W./I‑27/LPetitions dismissed.