Mrs. KHALIDA AZHAR VS VIQAR RUSTAM BAKHSHI
2009 P T D 1694
[Islamabad High Court]
Before Muhammad Munir Peracha, J
Mrs. KHALIDA AZHAR
Versus
VIQAR RUSTAM BAKHSHI and others
C.M.A. No.702-S of 2009 in Civil Suit No.1727 of 2008, decided on 18/05/2009.
Income Tax Ordinance (XLIX of 2001)---
----S.216---Application for summoning Income Tax Record-Keeper as witness with record---High Court had no power to require the record keeper of Income Tax Department to produce before it any Record relating to any proceeding under the Income Tax Ordinance, 2001---No doubt, subsection (3) of S.216 of Income Tax Ordinance, 2001 was an exception to subsections (1) & (2) of said section, however, clause (m) of S.216, prima facie, was not attracted in the facts of the case, because in the present case neither the Federal Government nor any Income Tax Authority was a party; and the matter also did not arise out of any proceedings under Income Tax Ordinance, 2001---Application was dismissed, in circumstances.
Dr. Azeem Azhar Raja Advocate/Special Attorney for Applicant.
Ch. Muhammad Iqbal and Muhammad Arbab Abbasi for Respondents.
Date of hearing: 11th May, 2009.
JUDGMENT
MUHAMMAD MUNIR PERACHA, J.---Through this application, the applicant/plaintiff has prayed that the Income Tax Record Keeper with the file of Tariq Viqar Bakhshi, be summoned as witness. Subsections (1) and (2) of section 216 of the Income Tax Ordinance, 2001 read as under:--
"(1) All particulars contained in--
(a) any statement made, return furnished, or accounts or documents produced under the provisions of this Ordinance;
(b) any evidence given, or affidavit or deposition made, in the course of any proceedings under this Ordinance, other than proceedings under Part XCI of Chapter X; or
(c) any record of any assessment proceedings or any proceeding relating to` the recovery of a demand,
(d) shall be confidential and no public servant save as provided in Ordinance may disclose any such particulars.
(2) Notwithstanding anything contained in the Qanun-e-Shahadat, 1984 (P.O. Order No.10 of 1984), or any other law for the time being in force, no Court or other authority shall be, save as provided in this Ordinance, entitled to require any public servant to produce before it any return, accounts, or documents contained in, or forming a part of the records relating to any proceedings under this Ordinance, or any records of the Income Tax Department generally, or any part thereof, or to give evidence before it in respect thereof."
Thus, this Court has no power to require the Record Keeper of Income Tax Department to produce before it any record relating to any proceeding under the Income Tax Ordinance. However, learned counsel for the applicant submits that subsection (3) of section 216 of the Income Tax Ordinance, 2001 is an exception to the general rule contained in section 216(1)(2) of the Act. In this respect he relies on clause (m) of section 216(3) of the Ordinance. There is no doubt that subsection (3) is an exception to subsections (1) and (2). However, 'clause (m) of section 216 prima facie is not attracted in the facts of this case because in the present suit neither the Federal Government nor any Income Tax Authority is a party and the matter also does not arise out of any proceedings under the Income Tax Ordinance. When confronted, the learned counsel for the applicant submits that the phrase "to which the Federal Government or Income Tax Authority is a party which relates to any matter arising out of any proceedings under this Ordinance" shall be read only with the proceedings and "to a Civil Court in any suit" is an independent clause. In this respect he relies on section 227 of the Ordinance and submits that since no suit is competent in any Civil Court against any order made under the Ordinance, therefore, a civil suit cannot be visualized covering any matter arising out of any proceedings under the Income Tax Ordinance, 2001. I am unable to agree with the learned counsel for two reasons, firstly because even in section 227 apart from the words "suit" "other legal proceedings" are also mentioned. Even otherwise if any Income Tax Authority exceeds from its jurisdiction and the jurisdiction is assumed by the Income Tax Authority which does not vest in it, as a general principle the suit, is competent, despite bar contained in section 227 of the Ordinance. Learned counsel then submits that subsection (4) of section 216 provides:
"Nothing in this section shall apply to the production by a public servant before a Court of any document, declaration, or affidavit filed or the giving of evidence by a public servant in respect thereof."
2. The subject under discussion was dealt with by section 150 of the Income Tax Ordinance, 1979 which was repealed by the present Income Tax Ordinance. Subsection (4) of section 150 of 1979 Ordinance which was pari materia with subsection (4) of section 216 of Income Tax Ordinance, 2001 read as under:
"Nothing in this section shall apply to the production by a public servant before a Court of any documents, declaration or affidavit filed, or the record of any statement or deposition made in a proceeding under section 68 or section 75 or the giving of evidence by a public servant in respect thereof.
Under subsection (4) of section 150 of the Income Tax Ordinance, 1979, it was permissible for any public servant to produce before a Court any document, declaration or affidavit filed or the record of any statement or deposition made in a proceeding under section 68 or section 75 and there was no bar for the giving of evidence by a public servant in respect thereof. Thus, permission was very limited. Section 68 deals with the registration of firms and section 75 was with regard to partition of a Hindu undivided family. In Income Tax Ordinance, 1992, section 54 covers the subject. Subsection 4 of section 4 of Income Tax Ordinance, 1992 read as under:
"Nothing in this section shall apply to the production by a public servant before a Court of any document, declaration or affidavit filed or the record of any statement or deposition made in a proceeding under (section 25A or) section 26A, or to the giving of evidence by a public servant in respect thereof."
Section 25-A deals with partition of a Hindu undivided family and section 26-A deals with registration of firms. To me it appears that subsection (4) section 150 of the Income Tax Ordinance, 1979 was taken from the 1979 Ordinance and was enacted as subsection (4) of section 216 by inadvertence. No other explanation is possible because as otherwise subsection (4) of section 216 would nullify the whole of the provisions of subsections (1) and (2) of section 216.
3. In view of what has been discussed above, the application filed by the applicant is liable to be dismissed and same is hereby dismissed. A copy of this judgment shall be sent to the Ministry of Law, Ministry of Parliamentary Affairs and the Federal Board of Revenue, Islamabad to examine subsection (4) of section 216 of the Income Tax Ordinance, 2001 and to consider appropriate amendments in this subsection.
H.B.T./K-38/IslApplication dismissed.