Syed ABID HUSSAIN SHAH VS FEDERAL GOVERNMENT OF PAKISTAN, ISLAMABAD through Secretary, Finance Ministry of Finance, Islamabad, 2008 PTD-LAHORE-HIGH-COURT-LAHORE 1547 (2008)

Income Tax Ordinance (XLIX of 2001)---

----Ss. 153(6A), (6B), 53(2) & Second Schedule, Part IV---S.R.O. 847(I)/2007 dated 22-8-2007---Vires of S.R.O. 847(I)/2007 dated 22-8-2007---Held, notification is in excess of the jurisdiction of the Federal Board of Revenue, as the amendment by said notification has reduced the extent of the exemption provided under S.153(6A) of the Income Tax Ordinance, 2001---Federal Board of Revenue, under the garb of amendment in Part-IV of Second Schedule to the Income Tax Ordinance, 2001, had proceeded in a manner that it has brought the same to full and final discharge to certain manufacturers under S.153(6), which were earlier excluded---Federal Board of Revenue, therefore, has exercised a power, which is available with the legislature only---S.R.O. 847(I)/2007 dated 22-8-2007 is ultra vires the powers available to Federal Board of Revenue.

Writ Petition No. 7918 of 2007 fol.

Ch. Riaz Ahmad Vazdani (Advocate) v. Federation of Pakistan, Pakistan Atomic Energy Commission and others 1990 CLC 1406 ref.

Shahbaz Butt for Petitioner.

Sajjad Ali Jafari, for Respondents.

Muhammad Nawaz Waseem, Federal Counsel.

Dates of hearing: 7th and 9th May, 2008.

JUDGMENT

KH. FAROOQ SAEED, J.---By this single judgment, I would like to dispose of Writ Petitions Nos. 7179 of 2007, 7259 of 2007, 7260 of 2007 and 7261 of 2007, as common questions of law and fact are involved.

2. In these writ petitions, the questions raised are that whether the provisions of section 153(6A) and (6B) of Income Tax Ordinance, 2001, are mutually inclusive and whether the Notification under the provisions of subsection'(2) of section 53 by the Central Board of Revenue through S.R.O.847(I)/2007, dated 22nd August, 2007, is within the lawful jurisdiction available to the Member (Direct Taxes)/Additional Secretary, Federal Board of Revenue.

3. The issue has been exhaustively discussed in Writ Petition No.7918 of 2007 and others. Since, facts and law 'is the same, it shall apply mutatis mutandis on these writ petitions as well.

4. The purpose of separate order for these writ petitions from the above is that there is one small distinction between them. In the, present writ petitions, the assessees have directly challenged the above S.R.O. while in the Writ Petition No.7918 of 2007 and others, the department had refused to issue exemption certificate to the petitioners under the provision of section 153(6A) demanded by them.

5. The petitioner's counsel while challenging the vires of the Notification has relied upon the judgment of the Sindh High Court reported as 1990 CLC 1406 re: Ch. Riaz Ahmad Vazdani (Advocate) v. Federation of Pakistan, Pakistan Atomic Energy Commission and others, wherein it has been held that if it is established that the `milk' imported was contaminated, which can later be used by petitioner and his fellow Pakistanis, the invocation of the writ jurisdiction would be justified. Applying the said principle, this Court has already held in the aforementioned Writ Petition No.7918 of 2007, that the Notification is in excess of the jurisdiction of the Federal Board of Revenue, as the amendment has reduced the extent of the exemption provided under section 153(6A). The Federal Board of Revenue under the garb of amendment in Part-IV of Second Schedule had proceeded in a manner that it has brought the same to full and final discharge to certain manufacturers under section 153(6), which were earlier excluded. The Federal Board of Revenue, therefore, has exercised a power, which is available with the legislature only. Hence, this Court has declared the said Notification to be ultra vires to the powers available with them.

6. However, for the reason of detailed discussion on the issue otherwise these writ petitions are also allowed and the said Notification is held to be void and of no legal effect.

M.B.A./A-66/LPetition allowed.