ARSLAN POULTRY (PVT.) LTD. VS OFFICER INLAND REVENUE, 2015 PTD-ISLAMABAD 448 (2014)

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Alternate remedy---Jurisdiction of High Court under Art. 199 of the Constitution was limited to the extent provided thereunder---Where there was an alternate remedy available, it was the mandate of the Constitution that the High Court shall not exercise its jurisdiction under Art. 199 of the Constitution.

(b) Income Tax Ordinance (XLIX of 2001)---

----Ss. 131(5), 133 & 132(7)---Constitution of Pakistan, Art 199---Constitutional jurisdiction of High Court---Scope---Petitioner impugning order of Income Tax Appellate Tribunal---Alternate remedy of Reference under S. 133 of the Income Tax Ordinance, 2001 available---Interpretation of S. 131(5) of the Income Tax Ordinance, 2001---Petitioner/assessee impugned order of Appellate Tribunal whereby appeal of petitioner/assessee was disposed of---Contention of the petitioner was that the impugned order had not been passed by the Tribunal under S. 132(7) of the Income Tax Ordinance, 2001, but instead under S. 131(5) of the Ordinance therefore, the case of the petitioner did not fall within the purview of S. 133 of the Income Tax Ordinance, 2001 for filing of reference against the impugned order; thus the alternate remedy of reference was not available to the petitioner and the Constitutional petition was maintainable---Held, that contention that the Tribunal had passed an order under S. 131(5) of the Income Tax Ordinance, 2001 was misconceived and said section started with a non-obstante clause and specifically provided that mere filing of an appeal before the Tribunal could not be construed as suspension of recovery proceedings, unless the said recovery had been stayed by the Tribunal while the appeal before it was pending---Section 131(5) made it mandatory that if the Tribunal refused to stay recovery proceedings, tax shall be payable in accordance with the assessment made in the case---No ambiguity existed in the language of S.131(5) and provisos thereto; and it merely related to the powers of the Tribunal to grant or refuse stay of the recovery of tax, while the main appeal was pending---In the present case, the petitioner's/assessee's main appeal had been disposed of by the Tribunal, therefore the only statutory course available to the petitioner in such circumstances was to file a reference under S.133 of the Income Tax Ordinance, 2001 against order of Tribunal---High Court was duty bound to enforce provisions of the Income Tax Ordinance, 2001 and to give effect to its legislative intent; and since the alternate remedy of filing of reference under S.133 of the Income Tax Ordinance, 2001 was available to the petitioner, therefore, the impugned order was not amenable to the Constitutional jurisdiction of High Court---Constitutional petition was dismissed, in circumstances.

Messrs Zarghoon Zarai Corporation v. Collector of Customs 2006 PTD 534; Z. N. Exports (Pvt.) Ltd. v. Collector of Sales Tax 2003 PTD 1746; Messer Aidy Vee and Co. (Pvt.) Ltd. through Director v. Taxation Officer of Income Tax, Lahore and 2 others 2009 PTD 1715; and Dawood Textile Printing Industries (Pvt.) Ltd., v. Federation of Pakistan through Secretary, Revenue Division, and others 2009 PTD 1220 distinguished.

(c) Administration of justice---

----When the law required an act to be done in a particular way; it had to be done in that manner alone, and such dictate of law could not be termed technical.

Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 rel.

(d) Income Tax Ordinance (XLIX of 2001)---

----Ss. 133 & 132(7)----Constitution of Pakistan, Art. 199---Exercise of Constitutional jurisdiction of High Court over an order passed by the Income Tax Appellate Tribunal under S. 132(7) of the Income Tax Ordinance, 2001---Availability of alternate remedy of filing of Reference under S. 133 of the Income Tax Ordinance, 2001---Maintainability of Constitutional petition---High Court, by exercising its jurisdiction under Art. 199 of the Constitution would defeat the legislative intent behind S. 133 of the Income Tax Ordinance, 2001 and give rise to an anomaly that when the statute provided for a reference to be filed against order passed by the Appellate Tribunal, restricting it to a question of law arising out of the said order, and to be heard by a Bench of at least two Judges of the High Court, the exercise of the Constitutional jurisdiction of High Court under Art. 199 would defeat the legislative intent and thereby render the statutory provisions as redundant.

Hafiz Muhammad Idrees for Petitioner.

None for Respondents.

Date of hearing: 1st September, 2014.

ORDER

ATHAR MINALLAH, J.---Briefly stated, the facts of the case are that an order was passed by an appropriate officer of Inland Revenue, Audit Unit-IV, Large Tax Payers Unit, Islamabad dated

30-6-2014. The order was passed in exercise of powers vested under section 122(1) read with section 122(5) of the Income Tax Ordinance, 2001. The petitioner preferred statutory appeal under section 127 of the Income Tax Ordinance, 2001 (hereinafter referred to as the "Ordinance"). An application dated 3-7-2014 was also filed along with memo. of appeal seeking interim relief. The said application was dismissed by the respondent No.2 vide order dated 7-7-2014. Against the said order, the petitioner preferred an appeal under section 131 of the Ordinance and the same was decided vide order dated 10-7-2014 passed by the Appellate Tribunal, Inland Revenue, Islamabad. The learned Tribunal disposed-off the appeal of the petitioner. The petitioner has sought to invoke the jurisdiction of this Court by impugning the order dated 10-7-2014 passed by the learned Tribunal.

2.The jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as "Constitution") is limited to the extent as provided there under. Where there is an alternate remedy available, it is the mandate of the Constitution that this Court shall not exercise its jurisdiction. Moreover, it is the duty of this Court to give effect to the legislative intent of the Statute which in this case is the Ordinance. Under section 133 of the Ordinance, any person aggrieved by the order of the Appellate Tribunal passed under subsection (7) of section 132 may file a "Reference" before this Court within the time, stipulated therein. The Reference can raise question(s) of law arising out of the order of the Appellate Tribunal. Furthermore, the Reference is to be heard by a Bench of not less than two Judges of this Court.

3.The learned counsel contends that the learned Tribunal has not passed an order under subsection (7) of section 132 of the Ordinance, so as to bring the case of the petitioner within the purview of section 133 ibid. The learned counsel has stressed that the impugned order has been passed under subsection (5) of section 131 and, therefore, it is outside the scope of section 133 of the Ordinance. The learned counsel has cited the judgments reported as "Messrs Zarghoon Zarai Corporation v. Collector of Customs" (2006 PTD 534), "Z.N. Exports (Pvt.) Ltd. v. Collector of Sales Tax" (2003 PTD 1746), "Messer Aidy Vee and Co. (Pvt.) Ltd. through Director v. Taxation Officer of Income Tax, Lahore and 2 others" (2009 PTD 1715), and "Dawood Textile Printing Industries (Pvt.) Ltd., v. Federation of Pakistan through Secretary, Revenue Division, and others" 2009 PTD 1220], in support of his contention that the impugned order is amenable to the jurisdiction of this Court under Article 199 of the Constitution.

4.The contention raised by the learned counsel that the Tribunal has passed the order under subsection (5) of section 131 of the Ordinance is misconceived. The subsection relied upon by the learned counsel starts with a non-obstante clause and specifically provides that mere filing of an appeal before the Tribunal cannot be construed as suspension of the recovery proceedings, unless the recovery has been stayed by the Tribunal while the appeal is pending. It further makes it mandatory that if the Tribunal refuses to stay the recovery proceedings, the Tax shall be payable in accordance with the assessment made in the case. The sub-section contains two provisos. The first proviso empowers the Tribunal to grant a stay of the recovery of Tax for a period not exceeding 180 days in aggregate. However, conditions for exercising this power are also enumerated in the proviso. The second proviso relates to computing the period of 180 days. There is no ambiguity in the language of subsection (5) of section 131 of the Ordinance and it merely relates to the power of the Tribunal to grant or refuse stay of the recovery of Tax, while the main appeal is pending.

5.In the present case, the main appeal of the petitioner has also been disposed-off by the learned Tribunal. The only statutory course available to the petitioner in the circumstances was to file a Reference against the said order under section 133 of the Ordinance.

6.The judgments relied upon by the learned counsel have been examined and the same have been found as to be distinguishable on the facts relating to the present petition. In the case reported as "Z. N. Exports (Pvt.) Ltd. v. Collector of Sales Tax" (2003 PTD 1746), the appeal was pending before the Tribunal and an injunctive order was also passed. The jurisdiction of the High Court was invoked on the grounds that the injunctive order had lost its efficacy due to the lapse of the statutory period of six (6) months as contemplated in proviso to subsection (4) of section 46 of the Sales Tax Act, 1990. It was not the case that the main appeal was decided by the Tribunal. The case of "Messrs Zarghoon Zarai Corporation v. Collector of Customs" (2006 PTD 534), also relates to the recovery proceedings initiated while the main appeal was pending before the Commissioner Income Tax Appeals. The case cited as "Dawood Textile Printing Industries (Pvt.) Ltd v. Federation of Pakistan through Secretary, Revenue Division, and others 2009 PTD 1220, also relates to section 46(4) of the Sales Tax Act, 1990, while the appeal was pending before the Tribunal.

7.This Court is not persuaded to accept the argument of the learned counsel for the petitioner that despite the statutory provisions of section 133 of the Ordinance, this Court can exercise its extra ordinary jurisdiction under Article 199 of the Constitution. Firstly, alternate remedy by way of filing a Reference against the impugned order is available to the petitioner and, therefore, the order is not amenable to the writ jurisdiction; secondly, it is the duty of this Court to enforce the provisions of the Ordinance and give effect to the legislative intent, and thirdly, it is a settled law that "when law requires an act to be done in a particular manner, it had to be done in that manner alone and such dictate of law would not be termed technical", as held in the case of "Muhammad Anwar and others v. Mst. Ilyas Begum and others" (PLD 2013 SC 255). This Court, therefore, by exercising its jurisdiction under Article 199 of the Constitution would defeat the legislative intent. As provided under section 133 of the Ordinance. It would also give rise to an anomaly that when the Statute provides for a Reference to be filed against the order passed by the Tribunal, restricting it to a question of law arising out of the order and to be heard by a Bench of at least two Judges of the High Court, the exercise of jurisdiction by this Court under Article 199 would defeat the legislative intent and thereby render the statutory provisions as redundant.

8.In the light of the above, the petition is not maintainable under Article 199 of the Constitution and, therefore, the same is dismissed in limine.

9.However, the petitioner has a statutory remedy of filing a reference under section 133 of the Ordinance against the impugned judgment of the Tribunal, provided a question of law arises out of the judgment of the Tribunal or was raised in the pleadings or before the Tribunal but not adverted to.

KMZ/71/IslPetition dismissed.