DADABHOY ENERGY SUPPLY COMPANY LTD. VS FEDERATION OF PAKISTAN, 2006 PTD-SUPREME-COURT 555 (2005)

(On appeal from the judgment, dated 23-12-2003 passed by High Court of Sindh at Karachi in Constitutional Petition No.272 of 2000).

Income Tax Ordinance (XXXI of 1979)---

----S. 50(5)---S.R.O.584(I)/95, dated 1-7-1995---S.R.O.279(I)/94, dated 2-4-1994---Constitution of Pakistan (1973), Art.185(3)---Issuance of exemption certificate and declaring S.R.Os. as discriminatory, unlawful and ultra vires the Constitution---Counsel for petitioner, who also appeared on behalf of petitioner in the High Court, had conceded that S.R.Os. in question were examined by Supreme Court in another case reported as 1999 SCMR 412 and same were not found to be discriminatory or ultra vires the constitution---High Court in view of such concessional statement of counsel for petitioner found that once it was admitted that notification of S.R.Os. in question was examined by Supreme Court and found that same was neither unlawful nor ultra vires the Constitution, it could not be assailed again on same grounds before the Court as it would amount to examining or determining the correctness, legality and . propriety of a judgment given by Supreme Court on same issue in an earlier case, which was not permissible in law---Nothing having left for adjudication, petition was dismissed.

Anoud Power Generation Ltd. v. Federation of Pakistan PLD 2001 SC 340 and Collector of Customs v. Ravi Spinning Ltd. 1999 SCMR 412 ref.

S. Irtaza H. Zaidi, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record (absent) for Petitioner.

Nemo for Respondents Nos.1, 3 and 4.

Akhlaq Ahmed Siddiqui, Advocate-on-Record for Respondent No.2.

Date of hearing: 20th October, 2005.

ORDER

SAIYED SAEED ASHHAD, J.---This petition for leave to appeal has been filed against the Sindh High Court judgment, dated 23-12-2003 in Constitution Petition No.272 of 2000 dismissing the same.

2. Brief facts of this case are that petitioner had filed C.P. No.272 of 2000 in the High Court of Sindh wherein they sought the following reliefs:--

"It is therefore, prayed in the interest of justice that this Honourable Court may be pleased to:--

(a) declare that S.R.O. 584(I)/95 is discriminatory, unlawful, unconstitutional and void ab initio insofar as it amends S.R.O.279(I)/94 and seeks to impose Customs Duty on power generation unit on the basis of, who the ultimate purchasers are;

(b) declare that S.R.O. 585(I)/95 is discriminatory, unlawful and ultra vires the Constitution of Pakistan, 1973 and should be struck down;

(c) (i) declare that S.R.O. 560(I)/96 is ultra vires the Customs Act, 1969, and the Constitution of Pakistan, 1973 and should be struck down;

(ii) in alternative section 18(2) of the Customs Act, 1969 be struck down for being in excessive delegation of powers;

(d) direct the respondents to issue an Exemption Certificate in terms of section 50(5) of the Income Tax Ordinance, 1979 and in the meanwhile to clear the goods of the petitioner without demanding payment of any Advance Income Tax;

(e) grant costs of the petition;

(f) grant interim relief by way of staying the recovery of Customs Duty, Regulatory Duty from the petitioners in respect of consignments imported under L/C Nos.SCB/408/DCIL and 02/10660/96 and Bills of Entry, Import General Manifest Nos.1352/96 dated September 19, 1996, 1372/96, dated September 22, 1996, 1560/96, dated October, 26, 1996, No.1612/96 dated November 5, 1996, 1849/96 dated December 21, 1996 and 255/97 dated February 19, 1997, without payment of the impugned Regulatory Duty, Customs Duty and Advance Income Tax;

(g) direct the respondents or anyone acting for through or under them not to take any coercive measures against the petitioners and or their Directors till a decision in this petition;

(h) grant such other relief as may be deemed just and proper by this Honourable Court."

During the course of arguments before the High Court the counsel for respondent No.2 Raja M. Iqbal, drew the attention of learned Division Bench of Sindh High Court to the pronouncement made by this Court in the case of Anoud Power Generation Ltd. v. Federation of Pakistan PLD 2001 SC 340. In this case this Court had refused leave against the order of the Lahore High Court in a petition assailing Notification S.R.O.279(I)/94 as amended by S.R.O.584(I)/95 and S.R.O.585(I)/95 on the ground of being discriminatory, unlawful and ultra vires the Constitution, maintaining the order of the Lahore High Court declaring the notification in question as lawful and intra vires to the Constitution and also not being discriminatory.

3. From the impugned judgment of the Sindh High Court it transpires that Mr. I.H. Zaidi, learned Advocate Supreme Court for the petitioner who also appeared on behalf of the petitioner in the Sindh High Court conceded that the S.R.Os. in question were examined by the Court in the case of Collector of Customs v. Ravi Spinning Ltd. 1999 SCMR 412 and was not found to be discriminatory or ultra vires the Constitution. The High Court in view of such concession/statement made by Mr. I.H. Zaidi, found that once it was admitted that the notification in question was examined by this Court and it was found that neither it was unlawful nor ultra vires the Constitution then it could not be assailed again on the same grounds before the Court as it would have amounted to examining or determining the correctness, legality and propriety of a judgment given by this Court on the same issue in an earlier case, which was not permissible in law. Therefore, the Sindh High Court came to the conclusion, and rightly so that nothing was left for adjudication as it could not take a view contrary to the one taken by this Court.

4. For the foregoing facts and discussion this petition is found to be misconceived and also without any substance. Accordingly it stands dismissed and leave to appeal refused.

H.B.T./D-24/SCLeave refused.