ICI PAKISTAN LIMITED VS FEDEKATION OF PAKISTAN through Secretary, Ministry of Finance, 2007 PTD-SUPREME-COURT 2306 (2006)

(On appeal from the judgment dated 13-1-2006 in C. P. No.D-658 of 2005 passed by the High Court of Sindh, Karachi).

Income Tax Ordinance (XXXI of 1979)---

----S.62---Constitution of Pakistan (1973), Arts. 199 & 185(3)---Prima facie case for grant of leave to appeal was made out, inter alia to consider; that whether the High Court- erred in law in holding that petition was not maintainable under Art. 199 of the Constitution; that whether the Income Tax Authorities had jurisdiction to ascertain the effective date of demerger which the High Court in its special Company Jurisdiction had already decided in an other case; that whether the Income Tax Authorities could override the order of the High Court in not accepting the effective date as sanctioned by the High Court in special Company Jurisdiction; and that whether High Court erred in law in tailing to appreciate that notice issued under section 62 of Income Tax Ordinance, 1979 was without lawful authority and of no legal effect---Ad interim injunction as prayed for, was granted.

Abdul Hafeez Firzada, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioners.

Nemo for Respondent.

ORDER

HAMID ALI MIRZA, J.---This petition for leave to appeal is directed against judgment dated 13-1-2006 in C.P. No.D-658 passed by learned Division Bench of the High Court of Sindh, Karachi, whereby the said constitutional petition was dismissed, hence this petition for leave to appeal.

2. Facts of the case need not be reiterated as the same have been stated in the memo. of petition as well as in the impugned judgment.

3. We have heard learned counsel for the petitioner and perused the impugned judgment and the record.

4. We find that prima facie case for grant of leave to appeal is made out inter alia to consider the following points:---

(i) Whether the learned Division Bench of the High Court erred in law in holding that the petition was not maintainable under Article 199 of the Constitution of the Islamic Republic of Pakistan?

(ii) Whether the Income Tax Authorities had jurisdiction to ascertain the effective date of demerger which the High Court in its special Company jurisdiction had already decided in Judicial Misc. Application No.17 of 2001 in the matter of ICI Pakistan Limited and Pakistan PTA Limited?

(iii) Whether the Income Tax Authorities can override the order of the High Court in not accepting the effective date as sanctioned by the High Court in its special company jurisdiction'? And

(iv) Whether learned Division Bench of the High Court erred in law in failing to appreciate that notice issued under section 62 of the Income Tax Ordinance was without lawful authority and of no legal effect.

C.M.A. is put up for consideration wherein the petitioner has prayed for suspension of the impugned judgment dated 13-1-2006 passed by the Hon'ble High Court of Sindh at Karachi in Constitutional Petition No.68 of 2005 and to restrain the respondents Nos.3 and 4 from proceeding any further on the basis of the notice dated 26-5-2005 issued by respondent No.4 under section 62 of the Income Tax Ordinance, 1979 till the decision of appeal.

Notice. Meanwhile ad interim stay as prayed for is granted.

H.B.T./I-3/SCLeave granted.