SHIFA MEDICO VS FEDERATION OF PAKISTAN

2007 P T D 2310

2007 P T D 2310

[Supreme Court of Pakistan]

Before Iftikhar Muhammad Chaudhry, Tassaduq Hussain Jillani and Karamat Nazir Bhandari, JJ

Messrs SHIFA MEDICO

Versus

FEDERATION OF PAKISTAN and others

Constitutional Petition No. 2114-L of 2002, decided- on 10th July, 2006.

Income Tax Ordinance (XXXI of 1979)---

----Ss.129, 134 & 136---Constitution of Pakistan (1973), Art. 185(3)---Assessment Order---Appealability of---Petitioner .had sought leave to appeal against judgment of High Court vide which his constitutional petition was dismissed---Leave was sought on the ground that High Court fell in error to hold that order passed by Special Officer Income Tax, which was challehged in the constitutional petition was appealable---Contention of petitioner was that order passed in constitutional petition having been violated, assessment made pursuant to said order was amenably to constitutional jurisdiction of the High Court and it Was for that reason that petitioner filed the second constitutional petition which culminated in passage of judgment impugned in petition for special leave to appeal---Validity---Assessment order passed, was amenable to appellate jurisdiction under Income Tax Ordinance, 1979, where petitioner could agitate all the points raised before Supreme Court---No illegality existed in the impugned judgment---No question of law warranting grant of leave to appeal, having been raised, petition was dismissed and leave was refused.

Sh. Zia Ullah, Advocate. Supreme Court for Petitioner.

Muhammad Ilyas Khan, Senior Advocate Supreme Court and Ch. M. Aslam Chattha, Advocate-on-Record for Respondents.

Date of hearing: 10th July, 2006.

ORDER

TASSADUQ HUSSAIN JILLANI, J. ---Petitioner seeks leave to appeal against the judgment dated 24-5-2002 passed by a learned Judge of the Lahore High Court vide which his constitutional petition was dismissed on the ground, "once an assessment order has been passed which is appealable before the First Appellate Authority, to the Tribunal and then is amenable to referable jurisdiction of this Court no further proceedings in this petition are required to be taken. The petitioner can very well .make his submissions before the aforesaid judicial forums provided for under the law".

2. Learned counsel for the petitioner seeks leave on the ground that the learned High Court fell in error to hold that the order dated 14-5-2002 was appealable; that the afore-referred order which was challenged through the constitutional petition which stands dismissed vide the impugned judgment was passed pursuant to a direction issued by the learned Lahore High Court and since the said order had been passed in derogation to the directions given by the High Court (in petitioner's earlier Writ Petition bearing No.7335 of 1995 disposed of on 25-6-1995), the same was rightly challenged in the High Court and it was not appealable before the Appellate Authority.

3. We have heard learned counsel for the petitioner and have given anxious consideration to the submissions made.

4. We have gone through the order dated 25-6-1995 passed in Writ Petition No.7335 of 1995 which according to learned counsel had been violated and therefore assessment made pursuant to the said order was amenable to constitutional jurisdiction to the learned High Court. It was for this reason, he contended, that .petitioner filed the second Writ Petition No.15197 of 1997) which culminated in the passage of the judgment impugned in this petition for special leave to appeal. The learned High Court had disposed of the earlier Constitutional petition as petitioner's learned counsel in the said petition did not want to press the same in view of the undertaking given by department's learned counsel. The order dated 25-6-1995 reads as under:---

"Learned counsel appearing on behalf of the respondents, at the outset, submitted that the credit of section 50 sub-clause (v) was given to the petitioner by means, of orders dated 17-9-1993 Annexures D to H. These orders were passed under section 156 of the Income Tax Ordinance, 1979. While issuing the Demand Notice, these amounts were not deducted from the amount of tax demanded from the petitioner; that the Department will give that credit to the petitioner; that the original Challan Form regarding deposit of amount of tax mentioned in Annexures D to H had been given of Tax Department. These credits will be given to the petitioner positively. In addition to these credits, if the petitioner makes any other claim then he will have to file the originals of the challan of these credits and they will be accordingly given by the respondent-Department, in accordance with law. However, this statement will not cover any demand of additional tax, if it is leviable under the law.

In view of the statement made by the learned counsel for the respondents, learned counsel for the petitioner does not want to press this petition. Order accordingly. Disposed of as not pressed."

5. It was pursuant to the afore-referred order that the Special Officer Income Tax on 14-5-2002 passed a fresh order which was challenged in the Constitutional Petition No.15197 of 1997 and stands disposed of vide the impugned judgment. The assessment order passed was amenable to appellate jurisdiction under the Income Tax Ordinance where petitioner could agitate all the points raised before this Court. The learned High Court (sic) Constitutional petition. We do not find any illegality in the impugned judgment. No question of law warranting grant of leave to appeal has been raised. The petition having no merit is accordingly dismissed and leave refused.

H.B.T./S-13/SCLeave refused.