INDUS JUTE MILLS (PVT.) LTD. through Chief Executive VS COMMISSIONER OF INCOME TAX, ENFORCEMENT DIVISION-I, LAHORE, 2008 PTD-LAHORE-HIGH-COURT-LAHORE 940 (2008)

Income Tax Ordinance (XLIX of 2001)---

----Ss.153(6) & 159---Constitution of Pakistan (1973), Art.199---Constitutional petition---Refusal to grant exemption certificate---Petitioner which was a manufacturing and export unit, had challenged in constitutional petition, Authorities' action to refuse to grant exemption certificate---Petitioner/assessee had contended that it had suffered a loss of Rs.15,24,55,563, upto the tax year 2006 and that loss was so huge that assessee was not likely to be charged tax for relevant year or for the coming many years---Validity---High Court being conscious of the fact that impugned order of Commissioner through which exemption certificate had been refused was appealable, but since said remedy of appeal was not efficacious and expeditious and the department's attitude of refusal ignoring all the facts, being against the accrued rights to the petitioner, it was that exemption certificate be issued---Such direction, however, was only for one time exemption certificate for export of the consignment which was pending; for subsequent proceedings, Department would verify the facts and after satisfaction would release exemption certificate as per law and rules.

Ch. Anwar-ul-Haq for Petitioner.

Shahid Jamil for Respondent.

ORDER

KH. FAROOQ SAEED, J.---This petition filed by Messrs Indus Jute Mills (Pvt.) Limited, has challenged the respondent's action to refuse to grant the exemption certificate by arguing it to be as against law, facts and circumstances of the case.

2. Brief facts leading to this petition are that the assessee taxpayer has suffered a loss of Rs.15,24,55,563 up to the tax year 2006. The assessee claims that the loss is so huge that he is not likely to be charged to the tax for this year or in the coming many years. The petitioner is a manufacturing and export unit, in addition to the local supply of jute items. The export of the assessee is neither subject to presumptive tax regime nor the provision of subsection (6) of section 153 applies on him being a manufacturer. Moreover, he has already paid a total amount of tax at Rs.20,00,245. This amount statedly is on account of deduction on export proceeds as well as on electricity bill amounting to Rs.19,92,245 and Rs.8000 respectively. The requirement of the Department even on the basis of the earlier tax charged for three quarters come to Rs.16,35,008. Resultantly, the petitioner has already deposited, by virtue of deduction, a sum of Rs.3,65,237 in excess of the required instalment as advance tax.

3. The facts and circumstances of the case clearly warrant interference of this Court through this writ petition. This Court is fully conscious of the fact that the order of the Commissioner through which the exemption certificate has been refused is appealable, but, however, since the remedy is not efficacious and expeditious and the Department attitude of refusal ignoring all the facts above being against the accrued right to the petitioner, this Court has no hesitation in directing for issuance of an exemption certificate. However, this direction is only for one time exemption certificate for export of the consignment which is pending as stated by the petitioner. For subsequent proceedings, the department shall verify the above facts and after satisfaction, release exemption certificate as per law and rules. This writ petition, therefore, is disposed of with the above direction.

H.B.T./I-5/LOrder accordingly.