Mian MUHAMMAD YOUSUF ZIA VS FEDERATION OF PAKISTAN through Secretary, Ministry of Finance, 2014 PTD-ISLAMABAD 393 (2012)

(a) Sales Tax Act (VII of 1990)---

----S.3---S.R.O. No.951(I)/2005 dated 14-9-2005---Constitution of Pakistan, Art. 199---Constitutional petition---Sales invoice of vehicle showing payment of sales tax @ 15% of its value---Demand of sales tax by Motor Registration Authority while registering such vehicle---Validity---Neither Notification S.R.O. 951(I)/2005 dated 14-9-2005 nor any other provision of law empowered Motor Registration Authority to raise impugned demand---High Court accepted constitutional petition while declaring impugned act of Registration Authority as illegal and without jurisdiction.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition challenging an illegal act of Government functionary---Maintainable.

Arshad Zaman Kiyani for Petitioner.

Nazir Abbasi, Standing Counsel.

Malik Itaat Hussain and Miss Nazeeran Malik for Respondents.

Date of hearing: 17th May, 2012.

JUDGMENT

NOOR-UL-HAQ N. QURESHI, J.---Through the present petition, the petitioner seeks relief against double taxation, as same being ultra vires, illegal and void. Therefore, petitioner seeks declaration of levying of sales tax @ 1.5% for the first registration of new vehicle as illegal, against the fundamental rights, as the same was levied in view of S.R.O. No.951(I)/2005, which does not indicate such imposition.

2.The petitioner, being a legal practitioner, is a bona fide member of Islamabad Bar Association and High Court Bar Association, Rawalpindi. A Honda City-DSI Car Mode-2006 white colour, with Engine No.L12A2-1028212, Chassis No.NFBGE154X6TR128214, Engine Capacity 1300 CC was initially booked in the name of YousafAli son of Ch. Ahmed Ali being customer. While buying the vehicle through Messrs Dean Motors in the month of February, 2006, the amount inclusive all the applicable levies and taxes like sales tax at 15%, whichwasalsopaidasapparentfromdeliveryadviceintransferletter.

As a first/fresh registration of new zero-meter vehicle was applied according to procedure of law by submitting requisite documents. Upon presentation of prescribed application, respondent No.4 directed the petitioner to deposit a sum of Rs.2,000 as transfer fee, Rs.17,690 as registrationfeeat2% Rs.13,268assalestaxat1.5%assessedontotal amount of Rs.884,500 as per sale invoice to considering is as thetotal price of car. Since sales tax was already levied, therefore, again such demand by respondent No.2, amounts to double taxation. Such taxwas since levied on the basis of Notification dated 14-9-2005, not indicating any such amount required to be paid towards sales tax, therefore, such conduct has been challenged through the instant writ petition.

3.Respondent No.4, by submitting written reply, has controverted the same on the grounds that it is not double taxation. Originally, one MuhammadYousafpurchasedthevehicle,whoonward,soldthesametothepetitionerfromwhom,respondentNo. 4onlylevied1.5% which comes to Rs.13,268 as transfer fee, same is not double taxation, therefore, petitioner has no right to claim such amount from respondent.

4.Learned counsel for the petitioner argued that apparently, it is a double taxation, as the amount was levied separately by challan submitted as Annex-A, which provides two payments, one Rs.17,690 and another Rs.2,000, total comes to Rs.19,690 and another challan apparently showning sales tax return-cum-payment challan. In the said document i.e. Annex-B, value of taxable goods has been shown a sum of Rs.884,500, which are shown in the sale invoice as Annex-E, including sales tax at 15%, which comes to Rs.1,15,369. He argued that same amount has been shown as value on taxable goods whereas in the column of sales tax due, the rate of taxation has been shown at 1.5%, whereas the amount deposited is Rs.13,268.

Learned counsel argued that earlier when the sales tax has been deposited, shown as Annex-E as sales invoice, therefore, respondent No.4 has wrongly extorted such amount upon total amount of Rs.884,500.

5.For convenience and to understand the actual controversy between the parties, it is necessary to reproduce the description of sales invoices herein below:--

6.It is also necessary to submit here the amount levied while gettingthevehicleregisteredwithrespondentNo. 4tosubmitdetails:--

Part-II

(5) Outstanding sales tax credit (Input tax) for the preceding period if any Rs.13,268

(6) SALES

7.Learned counsel for the respondent argued that it is a taxmatter, therefore, the petitioner should have preferred an appeal as provided by the tax laws and Motor Vehicle Ordinance, rules framed thereunder, writ is not a proper remedy to be invoked as an adequate remedy, which is already available to the petitioner.

8.Arguments heard. Record perused as well as relevant provisions of law quoted by the learned counsel.

9.From perusal of record, it infers that earlier vide sale invoice issued by the company with regard to the vehicle, payment of sales tax @ 15% has been clearly mentioned, an amount whereof has also been mentioned therein, but respondent No.4, at the time of registration of vehicle, compelled the petitioner to deposit more amount with regard to sales tax as due @ 1.5% on the total value of vehicle. Rs.884,500 is an exact amount, shown as a total sum up in the sale invoice i.e. Rs.884,500, which includes sales tax also. While referring the Notification dated 14-9-2005, the same does not disclose any such authorization to respondent No.4 for levying such an amount towards sales tax @ 1.5%. When learned counsel for the respondent was apprised such controversy that respondent No.4 is not authorized by law to levy such amount towards sales tax @ 1.5%, none of them could be able to guide the Court in this regard, as to by which provisions of Notification dated 14-9-2005, respondent No.4 is empowered to levy such amount. towards sales tax.

10.Since it is an act of respondent No.4 highlighted, which he did contrary to the requirement of law, therefore, every such conduct of any government functionary has to be assailed through writ as embodied under Article 199 of the Constitution of Islamic Republic of Pakistan. Therefore, in my humble view, writ lies in the instant matter.

11.In view of my observations with regard to maintainability, I further hold that it is a clear-cut case of double taxation, despite a fact that respondent No.4 is not empowered by Notification dated 14-9-2005, he compelled the petitioner to deposit sales tax separately levied

@ 1.5%, which cones to Rs.13,268, absolutely a figure on assessment, comes from total value shown in Annex-B i.e. Rs.884,500, the exact amountshownin sales invoice i.e. Annex-E, which includessalestax @ 15%.

12.Therefore, I hold that respondent No.4, under no provisions of law, was empowered to levy such sales tax at the rate shown therein i.e. 15%, total comes to Rs.13,268 as such, the act of respondent No.4 is, therefore, declared as illegal and excess of powers conferred by law.

13.Therefore, while allowing this writ petition, respondent No.4 is directed to rectify such act and Rs.13,268 be refunded to the petitioner.

14.The Writ Petition thus disposed off with the above direction.

SAK/117/IslPetition accepted.