FAROOQ KHALID PIPE MILLS (PVT.) LIMITED, LAHORE VS FEDERATION OF PAKISTAN through Secretary Finance, Islamabad

2011 P T D 2227

2011 P T D 2227

[Lahore High Court]

Before Umar Ata Bandial, J

Messrs FAROOQ KHALID PIPE MILLS (PVT.) LIMITED, LAHORE through Director

Versus

FEDERATION OF PAKISTAN through Secretary Finance, Islamabad and 5 others

Writ Petition No.23289 of 2010 and C.M. No.1 of 2011, decided on 17th January, 2011.

Income Tax Ordinance (XLIX of 2001)---

---Ss. 120 & 127---Constitution of Pakistan, Art.199---Constitutional petition---Assessment order, appeal against---Commissioner of Inland Revenue (Appeals), before whom appeal was filed by assessee, had failed to hear appeal or the application for interim relief, filed along therewith, despite a lapse of more than six months---Under the provisions of S.127 of Income Tax Ordinance, 2001, appellate forum was under a duty to decide an. appeal within a period of six months---Owing to procedural and infrastructual exigencies of the forum, Commissioner (Appeals), had not considered petitioner's appeal and in the circumstances the petitioner was suffering hardship---High Court directed, in circumstances that Commissioner (Appeals) would consider and decide petitioner's application for interim relief within a period of two weeks from the date of the order---Order accordingly.

Muhammad Ajmal Khan for Petitioner.

ORDER

C.M. No.1 02011.

UMAR ATA BANDIAL, J.---This is an application for early hearing. Let the main case be taken for hearing today. C.M. disposed of.

Main Case.

2. Submits that the petitioner filed an appeal before the respondent No.5 on 28-6-2010 against an assessment order made by respondent No.3 on 31-5-2010. The respondent No.5 has failed to hear the appeal or the application for interim relief filed along therewith, although more than six months have already elapsed. Under the provisions of section 127 of the Income Tax Ordinance, 2001 the appellate forum is under a duty to decide an appeal within a period of six months. Submits that the petitioner is being pressed for recovery whereas his statutory right of appeal which constitutes a fundamental right under law remains unexhausted.

3. The submission by learned counsel that the first right of appeal is an inherent right has force. In the present case it is also a statutory right subject to. a direction for its decision within a specific period of time. Owing to procedural and infrastructural exigencies of the learned forum, respondent No.5 has not yet considered the petitioner's appeal. In the circumstance, the petitioner is suffering hardship. It is accordingly directed that the respondent No.5 shall consider and' decide the petitioner's application for interim relief within a period of two weeks from the date of this order. Until the said date 15-2-2011 the respondent No.4 shall not take coercive action for recovery of impugned demand from the petitioner.

4. Petition disposed of.

H.B.T./F-6/L??????????????????????????????????????????????????????????????????????????????????????? Order accordingly.