OCEAN PAKISTAN LIMITED VS FEDERATION OF PAKISTAN through Secretary Ministry of Law and Justice, 2012 PTD-ISLAMABAD 1590 (2012)

Income Tax Ordinance (XLIX of 2001)---

---Ss.127 & 130(4)---Constitution of Pakistan, Art. 199, 8, 9, 10-A & 175---Constitutional petition---Maintainability---Notice for recovery of income tax---Company (petitioner) had prayed that Ss.127 and 130(4) of the Income Tax Ordinance, 2001, were ultra vires of Arts.9, 10-A and 175 of the Constitutionand were liable to be struck down and declared unconstitutional; that the authorities should be restrained from recovery of tax from the company till the disputed tax liability was conclusively decided by an independent tribunal outside the tax hierarchy, and that the impugned notice should be suspended during the pendency of the present petition and authorities should be restrained from taking any coercive measures against the company---Validity---Company had failed to make out its case on the touchstone of Art. 8 of the Constitution with regard to vires of the Income Tax Ordinance, 2001---Company, by challenging the vires of the said Ordinance after about eleven (11) years of its promulgation had the object to escape from its liability of payment of income tax---High Court in its constitutional jurisdiction could not trammel the proceedingscommencedonthemandateofastatute,particularlywhen the said statute itself provided the remedies to the aggrieved persons---Constitutional petition was dismissed, in circumstances.

Mansoor Usman Awan for Petitioner.

Bilal, (ASC) and Babar Bilal for Respondent No.4.

ORDER

SHAUKAT AZIZ SIDDIQUI, J.---Petitioner invoked the constitutional jurisdiction of this court by way of filing instant writ petition, with the following prayer:--

"It is, therefore, most respectfully prayed that this honourable Court may kindly:--

(I)Declare that section 127 of the Income Tax Ordinance, 2001, giving appellate powers to the respondent No.3, is ultra vires Articles 9, 10-A and 175 of the constitution and thus, liable to be struck down and declared unconstitutional;

(II)Declare that section 130(4) of the Income Tax Ordinance, 2001 whereby employees of Inland Revenue are appointed as accountant members of Inland Revenue Appellate Tribunal, is ultra vires Articles 9, 10-A and 175 of the Constitution and thus, liable to be struck down and declared unconstitutional;

(III)Restrain the respondents from recovery till the time the disputed tax liability can be conclusively decided by an independent Tribunal outside the tax hierarchy:

(IV)Suspend the operation of the impugned Notice dated 29-5-2012 during the pendency of the titled petition and the respondents may kindly be restrained from taking any coercive measures against the petitioner; and

(V)Any other relief that this honourable Court deems appropriate, under the circumstances of this petition, may also very kindly be granted.

2.Learned counsel for the petitioner submits that impugned notice dated 29-5-2012 has been issued with mala fide intention, ulterior motives and without jurisdiction. Learned counsel further submits that since viries of Income Tax Ordinance, 2001 have been challenged, therefore, instant writ petition is maintainable.

3.Learned counsel for respondents put appearance at the preliminary stage and by waving notice submitted that through device of instant writ petition, petitioner just wants restraining order from recovery of tax. Learned counsel for respondents further submitted that writ petition is not maintainable as petitioner has an alternate remedy under the statute.

I have heard the learned counsel for the petitioner as well as learned counsel for respondents.

4.In support of prayer with regard to vires of Income Tax Ordinance, 2001, learned counsel failed to make out, his case on the touchstone of Article 8 of the Constitution of Islamic Republic of Pakistan, justifying the interference by this court. Apparently, move of petitioner, in putting challenge to vires of the Ordinance after about 11 years is with the object to escape from the liability of the payment of Income Tax. The High Court in its constitutional jurisdiction; cannot trammel the proceedings commenced on the mandate of a statute, more particularly when said statute itself provides the remedies to the aggrieved persons.

In this view of the matter, I do not see any force in the petition which is dismissed in limine.

M.W.A./103/IslPetition dismissed.