NISHAT (CHUNIAN) LTD. VS FEDERAL BOARD OF REVENUE
2015 P T D 1385
[Lahore High Court]
Before Abid Aziz Sheikh and Shahid Karim, JJ
Messrs NISHAT (CHUNIAN) LTD. through Chief Financial Officer
versus
FEDERAL BOARD OF REVENUE through Secretary and 3 others
I.C.A. No.267 of 2015, decided on 12/03/2015.
(a) Appeal---
----Scope---Appeal is a creature of a statute and has to be specifically conferred as a right and unless it is so confirmed, the right of appeal cannot be presumed.
(b) Income Tax Ordinance (XLIX of 2001)---
----Ss. 127, 161 & 205---Law Reforms Ordinance (XII of 1972), S. 3 (2) & (3), proviso---Intra-court appeal---Maintainability---Word "proceedings"---Scope---Notices under Ss.161 & 205 of Income Tax Ordinance, 2001, were issued by authorities and assessees assailed the same before High Court under Constitutional jurisdiction---Single Judge of High Court dismissed petition filed by assessees---Validity---Proceedings commenced with the first step by which machinery of law was put into motion in order to take cognizance of the case and included every step taken towards further progress of a cause in Court or before a Tribunal, where it was pending---"Proceedings" was a comprehensive expression and included all possible steps in action under law from its commencement to execution of judgment---Applying such test, Division Bench of High Court concluded that notices assailed before Single Judge of High Court under Art. 199 of the Constitution, were a step in proceedings and law applicable provided for an appeal against original order, therefore, intra-court appeal under S. 3 of Law Reforms Ordinance, 1972, was not competent---Intra-court appeal was dismissed in circumstances.
Regional Commissioner of Income Tax and others v. M. Yousaf Academy Quick Fill C.N.G. and others PLD 2006 SC 787; Iftikhar Hussain and others v. Government of Pakistan and others PLJ 1996 Lah. 82; 1990 PTD 155; Muhammad Aslam Sukhera and others v. Collector Land Acquisition, Lahore, Improvement Trust, Lahore and another PLD 2005 SC 45; Deputy Commissioner/Administrator, District Council, Attock and another v. Lawrencepur Woollen Textile Mills Ltd. 1999 SCMR 1357; Vice Chancellor/Chairman Admission Board University of Health Science, Lahore v. Breeha Zainab and another 2011 MLD 1652; Lahore Development Authority through its Director General, Lahore and another v. Commissioner Lahore Division Lahore and another 2009 CLC 86 and PLD 1984 SC 344 ref.
(c) Law Reforms Ordinance (XII of 1972)---
----S. 3 (2) & (3) proviso---Object, scope and purpose---High Court by using the tool of purposive interpretation, stated the reasons for limiting the sweep of appeals to arise from petitions under Art. 199 of the Constitution.
Following are the reasons for limiting the sweep of appeals to arise from petitions under Art.199 of the constitution:
(i)Interlocutory proceedings / actions should not be allowed to be challenged as a normal course. It increases burden on judicial resources.
(ii)Constitutional jurisdiction should be used sparingly and not as a matter of routine and the scope of appeal arising therefrom must also be confined by parameters.
(iii)Matters should be permitted to be dealt with by statutory forums and ought not to be short circuited or circumvented by collateral attacks. This would defeat the intention of legislature.
(iv)A person cannot be conferred benefit of two appeals during the course of same proceedings; one arising out of original order and the other arising out of Law Reforms Ordinance, 1972.
Shehbaz Butt for Appellants.
ORDER
These Intra Court Appeals under section 3(2) of Law Reforms Ordinance (XII of 1972) 1972 (Ordinance 1972), a list of which is attached as Annexure 'A' with this order, lay a challenge to a consolidated order passed by the learned Single Judge dated 5-6-2014.
2.On the threshold, a baseline question was put to the learned counsel for the appellants in these appeals viz. whether in view of proviso to subsection (2) of section 3 of the Ordinance, 1972, these appeals were maintainable. The learned counsel for the appellants was, therefore, asked to address arguments on this question ahead of the merits of these appeals.
3.The learned counsel for the appellants submitted that though show-cause notices had been impugned in the Constitutional petition from which these appeals arose, no remedy was available by way of appeal, revision or review to any court, tribunal or authority and, thus, these appeals were competent and were not caught by the mischief of the proviso to subsection (2) of section 3 of the Ordinance, 1972. He further submitted that although a challenge had not been laid to Rule 44(4) of the Income Tax Rules, however, the exercise of powers while issuing the show-cause notices was done under the said rule and, therefore, any decision of the learned Single Judge was appealable to a Bench of two or more Judges of the High Court. We will, therefore, proceed to determine the issue of maintainability of these appeals in the first instance as a threshold question.
4.The facts which are relevant for the disposal of the preliminary question are not in dispute. (By way of illustration, we shall narrate the facts in ICA 267/2015 only. The facts are substantially similar but for the difference in the dates of the issuance of the notice under sections 161/205 of the Ordinance, 2001, in the rest of the appeals. In all these appeals, the challenge was to the notices issued under sections 161/205 of the Ordinance, 2001 and the prayer, too, was couched in the same terms). It is the case of the appellants that the respondents set in motion proceedings relating to the tax years 2006, 2007 and 2008 under sections 161/205 of the Income Tax Ordinance, 2001 (Ordinance, 2001) through show-cause notices under sub-section (1A) of section 161 of the Ordinance, 2001. These notices are dated 4-12-2009 and 15-6-2010. The appellants challenge these notices by filing Constitutional petition which culminated in the impugned orders being passed by the learned Single Judge of this Court. The prayer in the Constitutional petition was to the following effect:--
"(a)The impugned judgment may kindly be set at naught.
(b)The notices impugned in the writ petition may graciously be declared unlawful, void ab-initio and without jurisdiction.
(c)The respondents may be restrained from taking further steps in the proceedings by issuing fresh notice under Rule 44(4) of the Income Tax Rules as adjudged in the impugned judgment."
5.It is clear from a reading of the prayer that on various grounds taken in the Constitutional petition the show-cause notices were challenged by the appellants before the learned Single Judge. Suffice to mention here that by virtue of section 127 of the Ordinance, 2001 an appeal lies to the Commissioner (Appeals) against any order passed by the Commissioner or an officer of Inland Revenue under the provisions in which the show-cause notices were issued. For facility of reference, section 127 of the Ordinance, 2001 is reproduced as under:--
"127. Appeal to the Commissioner (Appeals).---[(1) Any person dissatisfied with any order passed by a Commissioner or an [Officer of Inland Revenue] under sections 121, 122, 143, 144, [162,] 170, 182, [ ] [or 205], or an order under subsection (1) of section 161 holding a person to be personally liable to pay an amount of tax, or an order under clause (f) of subsection (3) of section 172 [declaring] a person to be the representative of a non-resident person [or an order giving effect to any finding or directions in any order made under this Part by the Commissioner (Appeals), Appellate Tribunal, High Court or Supreme Court], or an order under section 221 refusing to rectify the mistake, either in full or in part, as claimed by the taxpayer or an order having the effect of enhancing the assessment or reducing a refund or otherwise increasing the liability of the person [, except an assessment order under section 122C,] may prefer an appeal to the Commissioner (Appeals) against the order.]"
6.Section 127, as reproduced above, makes it evident that any person who is dissatisfied with any order passed by the Commissioner or an officer of Inland Revenue, inter alia, under section 205 and subsection (1) of section 161 of the Ordinance, 2001, may prefer an appeal to the Commissioner (Appeals) against the said order. The simple question for determination, therefore, is whether the application which was brought before the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution) arose out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any court, tribunal or authority against the original order.
7.It is admitted on all hands that the notices were issued under section 161 and section 205 of the Ordinance, 2001 which were proceedings to culminate into an original order under the said provisions and against which original order an appeal lay to the Commissioner (Appeals). The proviso to subsection (2) of section 3 of the Ordinance, 1972 has been the subject of interpretation by the superior courts in a cluster of judgments. They shall be referred to in the proceeding part of this order. It is however clear that an appeal is not competent if the petition under Article 199 of the Constitution arose out of "proceedings" in which the law applicable provides for at least one appeal, one revision or one review to any court etc. against the "original order". The word "proceedings" has been used in contradistinction to the word "original order" and the use of these terms at two different places is at once apparent and betrays the intention of the legislature. They refer to two different stages and, for the purpose of the competency of the appeals what has to be seen is whether the petition under Article 199 of the Constitution arises out of proceedings which would culminate in an original order and from which an appeal, revision or review is available. Therefore, the proviso would be triggered if any part of the proceedings is brought under challenge in a petition under Article 199 of the Constitution. This is all that has to be seen at the stage of the maintainability of the appeals under the Ordinance, 1972 and the only determining factor for the appellate court is to see that in case the proceedings are determined by way of an original order then an appeal is barred under the Ordinance, 1972. It is trite principle that an appeal is a creature of a statute and has to be specifically conferred as a right and unless it is so conferred, the right of appeal cannot be presumed. The intention of the legislature in enacting the said proviso to subsection (2) of section 3 of the Ordinance, 1972 is clearly and without doubt to circumvent and discourage the challenges at the intermediate stage of any proceedings before the High Court and by extension by way of an appeal to a Bench of two or more Judges of that High Court.
8.The learned counsel for the appellants has relied upon judgments of the superior courts in order to support the preposition that the present appeals are competent. We shall now proceed to discuss the case-law relied upon by the learned counsel. The learned counsel referred to Regional Commissioner of Income Tax and others v. M. Yousaf Academy Quick Fill C.N.G. and others (PLD 2006 Supreme Court 787). In that case a Circular No.7 of 2002 was issued by the then Central Board of Revenue announcing Self-Assessment Scheme. Thereafter, the Board issued policy guidelines vide its letter dated 17-12-2002 for selection of cases for total audit. The companies who were respondents before the Supreme Court of Pakistan challenged the selection of their cases for audit after following the procedure laid down in the scheme of policy guidelines issued by the Board. The Supreme Court of Pakistan while accepting the petitions filed by the Income Tax Department condoned the non-filing of Intra Court Appeals before the High Court and held that in the peculiar circumstances of the case a direct appeal to the Supreme Court of Pakistan was competent. It can be seen that this case does not apply to the facts of the instant cases and the question there was entirely different before the Supreme Court of Pakistan. Moreover, it is also evident from the judgment of the Supreme Court that no appeal, revision or review lay against the notices which were under challenge and which had been issued under a scheme and policy guidelines of the Board.
9.The learned counsel for the appellants then referred to Iftikhar Hussain and others v. Govt. of Pakistan and others (PLJ 1996 Lahore 82). This was a Division Bench judgment and the relevant portion is reproduced as under:--
"5. Having heard the learned counsel for the parties, we do not find any merit in the objection raised by the learned Deputy Attorney-General and Mr. M. Saleem Sahgal, Advocate. It may be true that in a way Constitutional petition had arisen out of proceedings under the Criminal Procedure Code but reference to proviso to subsection (2) of section 3 of the Law Reforms Act, 1972 would show that the bar contained therein is not attracted merely for the reason that the law out of which the proceedings have arisen provides for an appeal or revision. On the other hand, in order to take way the right of appeal it has also to be shown that the original order in the proceedings was appealable or revisable. There can be any dispute and indeed it has not been argued by the learned counsel for the respondents that order or the act of registration of case under the Criminal Procedure Code is neither appealable or revisable. Consequently, the mere fact that against certain other orders which were not under challenge before the learned single Judge, an appeal and revision is provided by the Code of Criminal Procedure, cannot take away the right of appeal against the order of the learned single Judge of this Court."
10.It will be seen from the reproduced portion above that the learned Division Bench reiterated the principle that in order to take away the right of appeal it has to be shown that the original order in the proceedings was appealable and revisable. It was then held as a matter of fact that the act of registration of a case under the Criminal Procedure Code is neither appealable nor revisable. Thus, this judgment, in fact, supports the proposition that only in cases where it can be demonstrated that the original order is not appealable, can an appeal be competently filed under the Ordinance.
11.The learned counsel also relied upon 1990 PTD 155. There is no discussion on the issue of maintainability of an appeal under the Ordinance in the cited judgment. However, from the facts of the case in that judgment notices under section 65 of Income Tax Ordinance, 1979 (repealed Ordinance) were challenged and a direct appeal to the Supreme Court of Pakistan was filed against the findings of the Karachi High Court and no Intra Court Appeal was filed. We do not see how this judgment is relevant except for the inference that can be drawn that where notices are challenged then an appeal to the Supreme Court of Pakistan would be the proper remedy and not an Intra Court Appeal.
12.Lastly, the learned counsel for the appellants relied upon an unreported judgment of the Supreme Court of Pakistan in Civil Appeals Nos.1032 to 1082 of 2012 dated 3-1-2013. The relevant portion of the observations of the Supreme Court are as follows:--
"2. In the Leave Granting Order dated 24-10-2012 one of the question noted by this Court was in respect of the maintainability for want of filing of ICA. It may be mentioned that in the impugned judgment, the learned High Court has concluded that Section 177 (1) of the Income Tax Ordinance, 2001 and its first proviso offend against Articles 10-A, 18, 23 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 however, while examining the vires of the law noted herein before, notice was not issued to the learned Attorney General under Order XXVII-A Rule 1 of the Civil Procedure Code, 1908, therefore, in view of the judgment of this Court, passed in the case of Federation of Pakistan and others v. Aftab Ahmed Khan Sherpao and others (PLD 1992 SC 723), non-compliance of the mandatory requirements under Order XXVII-A, Rule 1. C.P.C. renders the proceedings defective and the judgment a nullity.
3. At the same time, we enquired from the learned counsel for the appellants, whether the ICA was not competent? He candidly conceded that such Intra Court Appeals were maintainable but stated that this Court in the case of Commissioner of Income Tax and others v. Messrs Media Network and others (PLD 2006 SC 787), has held non filing of the appeal, does not oust or abridge the jurisdiction of this Court on the said rule of practice can be dispensed with in special circumstances. In the instant cases the non-compliance of requirements of XXVII-A, Rule 1, C.P.C. had rendered the impugned judgment a nullity.
4 ... therefore, the learned counsel for the appellants as well as the respondents in the appeals noted hereinabove agree that the instant appeals be sent back to the ICA Bench treating the same, as the appeals against the original order and for decision after issuing notice to the learned Attorney General in order to save the parties from the agony of protracted proceedings and also to ensure that further time is not consumed in the legal proceedings as the question in the appeals, involves Public Revenue, therefore, the interest of both the parties would also be protected in this manner."
13.Again, the unreported judgment of the Supreme Court, relied upon by the learned counsel for the appellants, does not advance the case of the appellants. Firstly, there was no determination of the issue by the Supreme Court. Secondly, the order was passed on the agreement of the parties and the cases were remitted to the High Court for treating the petitions before the Supreme Court of Pakistan as Intra Court Appeal and thereupon to be decided as such. Thirdly, what weighed with the Supreme Court was the fact that the provisions of section 177(1) of the Ordinance, 2001 had been declared ultra vires the Constitution by the High Court and thus it was felt that Intra Court Appeal ought to have been filed since the question determined by the High Court related to the vires of the provisions of law which could not be determined by the departmental authorities nor by the appellate authority provided by the Ordinance, 2001. This case is, therefore, distinguishable from the case in hand.
14.As brought forth above, in the instant cases, the challenge was simply to show-cause notices issued under sections 161/205 of the Ordinance, 2001. In our opinion, the present is a case which is fully covered by the mischief of the proviso to subsection (2) of section 3 of the Ordinance, 1972. The superior courts have had the occasion to decide upon the issue in a number of judgments which we shall presently refer to.
15.In Muhammad Aslam Sukhera and others v. Collector Land Acquisition, Lahore, Improvement Trust, Lahore and another (PLD 2005 Supreme Court 45), the question related to the Award made under the Land Acquisition Act, 1894 which was challenged in a Constitutional petition which was dismissed. An Intra Court Appeal to the High Court was also dismissed and the question before the Supreme Court of Pakistan was whether the Intra Court Appeal was competent or not. It was held as under:
"7. There is no doubt in our mind that the award by the Tribunal is treated to be an original judgment and decree within the meaning of section 26 of the Act. Being an original decree, the award has been specifically made appealable before the High Court and then before this Court under section 54 of the Act of 1894. In view of express provisions of section 54 of the Act it is not possible for us to hold otherwise. It cannot be said that the award by the Tribunal is not an original order for the purposes of bar contained in proviso of section 3(2) of the Ordinance. Therefore, it is not necessary for us to determine as to whether the award made by the Collector could also be treated to be an original order or not. The object of Proviso to subsection (2) of section 3 of the Ordinance, 1972 seems to be to bar the remedy of Intra Court Appeal in those cases in which the relevant law provides the remedies of appeal, revision or review.
8. The word "original" is susceptible to different meanings in the context of a particular statute. It does not always mean "first in order". The expression "original order" in section 3(2) of the Ordinance was used in generic sense in contradistinction to orders passed in appeal, revision or review. In Macmillan and Company Limited v. K. and J. Cooper (AIR 1924 Privy Council 75), a case from Bombay jurisdiction, the Privy Council had the occasion to interpret the word "original" in the context of Copyright Act, 1911, as follows: --
"The word "original" does not mean that the work must be the expression of original or invented thought. Copyright Acts are not concerned with the opinion of ideas, but with the expression of thoughts; and in the case of "literary work" with the expression of thought in print or writing. The originality which is required relates to the expression of the thought; but the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work-that it should originate from the author."
"The mere process of selecting passages from works readily accessible to the public is not, but difficulty in obtaining assess to the originals are skill manifested in making or arranging the selection is sufficient to give the character of an "original literary work" to the selection."
In Re Oriental Bank (54 L.J. Ch. 481) it was held on the construction of a clause in the Charter of that Bank that the words "original-holder" of shares did not mean the first allottee, but meant the immediate transferor to the person holding the shares at the time when the phrase became operative i.e. in that case, the winding-up of the company."
16.In Deputy Commissioner/Administrator, District Council, Attock and another v. Lawrencepur Woollen Textile Mills Ltd. (1999 SCMR 1357), the legality and propriety of a Notification issued by the District Council whereby export tax was levied was brought under challenge. It was held by the Supreme Court of Pakistan that the Notification issued was in substance an "order" for levy of export tax and was, therefore, appealable to the controlling authority under the law. The Supreme Court went on to hold that:--
"2. Therespondent-Company is manufacturer of woolen cloth and blankets. By notification, dated 6-12-1976 the export tax was levied by the appellants on woolen cloth and blankets. The respondent-Company filed Writ Petition No.4043 of 1977 in the Lahore High Court, Lahore wherein the legality and propriety of the said notification had been challenged inter alia on the ground that the relevant Rules were not adhered to before levy of the tax."
17.In Vice-Chancellor/Chairman Admission Board University of Health Science, Lahore v. Breeha Zainab and another (2011 MLD 1652), the challenge was to the order of refusal of admission to the University of Health Sciences, Lahore. It was held that since a remedy of revision was available against the order of refusal of admission, which was to be treated as original order for the purpose of section 3(2) of the Ordinance, 1972, the Intra Court Appeal was not competent. The following observations of the High Court are pertinent:
"13. It is settled law that where a remedy of an appeal, revision or review is provided against an original order forming basis of a writ petition then an ICA in the matter is not competent. Reliance is respectfully placed upon Mst. Karim Bibi and others v. Hussain Bukhsh and another (PLD 1984 Supreme Court 344) and Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I, Lahore (PLD 1985 Supreme Court 107)."
18.In Lahore Development Authority through its Director General, Lahore and another v. Commissioner Lahore Division Lahore and another (2009 CLC 86), a judgment by a Division Bench of this Court, the following observations of the learned Bench are relevant for the purpose of the controversy in hand:
"6. In the present controversy undisputedly the impugned proceedings were commenced under the provisions of Land Acquisition Act and in case an order is passed in such proceedings, a right of appeal is available to the aggrieved party as per provisions of Section 54 of the Land Acquisition Act, 1894.
7. When the ground reality is undisputed as discussed above, then we cannot proceed with the present Intra Court Appeal and thus following the law laid down by the Hon'ble Supreme Court of Pakistan in the case of Mst. Karim Bibi and Muhammad Aslam Sukhera supra and keeping in view the rule of consistency, following the law laid down in Ch. Nazir Ahmed supra, we hold that this Intra Court Appeal is not competent. Accordingly, the same dismissed with no order as to costs."
19.However, the controversy, in our opinion, stands conclusively determined as far back as in PLD 1984 Supreme Court 344 by the Supreme Court of Pakistan. That judgment elucidated the tenor and meaning of the terms 'proceedings' and 'original order' used in the proviso to subsection (2) of section 3 of the Ordinance, 1972. It was stated by the Supreme Court of Pakistan that:--
"7. A plain reading of the proviso to subsection (2) of section 3 of the Law Reforms Ordinance means that no appeal will be available of competent before a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court in a Constitutional petition, if such petition arises out of "any proceedings" in which the law applicable provided for at least one appeal against the original order. The reference is clearly to the proceedings taken under any stature which prescribes a hierarchy of officers or authorities for the carrying into effect the purposes of such statute including the enforcement of rights, if any, created thereunder. In such a case clearly the law envisages an original order against which the remedy of appeal was provided by the relevant statute...."
8. After giving our anxious consideration to the arguments urged in support of this appeal we are, however, not impressed by any of the contentions raised. The test laid down by the Legislature in the proviso is that if the law applicable to the proceedings from which the Constitutional petition arises provides for at least one appeal, against the original order, then no appeal would be competent from the order of a Single Judge in the constitutional jurisdiction to a Bench of two or more judges of the High Court. The crucial words are the "original order". It is clear from the wording of the proviso that the requirement of the availability of an appeal in the law applicable is not in relation to the impugned order in the Constitutional petition, which may be the order passed by the lowest officer or authority in the hierarchy or an order passed by higher authorities in appeal, revision or review, if any, provided in the relevant statute. Therefore, the relevant order may not necessarily be the one which is under challenge but the test is whether the original order passed in the proceedings subject to an appeal under the relevant law, irrespective of the fact whether the remedy of appeal so provided was availed of or not. Apparently, the meaning of the expression "original order" is the order with which the proceedings under the relevant statute commenced. The word "proceedings" has been used in different enactments and has been subject to judicial interpretation in a number of cases wherein it has received either restricted or wide meaning according to the text and subject-matter of the particular statute. I do not consider it necessary to notice the various judgments in which this word was so construed. Suffice it to refer to the case of Nawab Din v. Member Board of Revenue PLD 1979 SC 846, in which this Court had occasion to examine the scope and meaning of the word as it occurs in section 2(2) of the Evacuee Property and Displaced Persons Law (Repeal) Act, 1975. A useful discussion will be found in this case with reference to precedents as the meaning of the term "proceedings". An earlier case of Jan Muhammad and another v. Home Secretary, West Pakistan and others PLD 1968 Lah. 1455, was referred to in this connection and the view taken therein was declared by this Court as the correct enunciation of the law on the subject. In the latter case reference was made to the definition of the term "proceedings" in the book "Words and phrases" which may usefully be reproduced as under;
"The term 'proceedings' is a very comprehensive term, and, generally speaking moans a prescribed course of action for enforcing a legal right, and hence it necessarily embraces the requisites steps by which judicial action is invoked. A 'proceedings' would include every step taken towards the further progress of a cause in Court or before a Tribunal, where it may be pending. It is the step towards the objective, to be achieved, say for instance the judgment in appending suit. The proceeding, commences with the first step by which the machinery of the law is put into motion in order to take cognizance of the case. It is indeed a comprehensive expression and includes all possible-steps in the action under the law, from its commencements to the execution of the judgment."
9. In the light of the aforesaid definition the proceedings under the Displaced Persons (Compensation and Rehabilitation) Act would seem to! commence with the application of a person entitled to the transfer of a property in the compensation pool under the Schedule and the Schemes framed thereunder. Normally the application will be disposed of by an order passed by the Deputy Settlement Commissioner which will apparently be the original in the proceedings. Any party aggrieved by such an order may then invoke appellate or revisional jurisdiction conferred under the statute before the higher authorities or officers. In such a case the proceedings remain the same until their conclusion by the order of the final authority as all the intermediary stages are steps taken towards the further progress of a cause or towards the objective to be achieved, the transfer of a particular property to the person entitled thereto under the relevant provisions of law...."
10 .... Similarly we are unable to see any force in the contention that the word "proceedings" should be given restricted meaning so as to confine it to the proceedings before the authority which passed the order under challenge in the Constitutional petition which in the present case was the suo motu proceedings commenced by the Settlement Commissioner. By no stretch can the order passed in revision be construed as the original order as contemplated by the proviso under consideration."
20.The meaning of the term 'proceedings' approved and relied upon by the Supreme Court of Pakistan must necessarily form the touchstone for any decision in this regard. The test would be that the proceedings commence with the first step by which the machinery of the law is put into motion in order to take cognizance of the case and would include every step taken towards the further progress of a cause in court or before a Tribunal, where it may be pending. It is a comprehensive expression and includes all possible steps in the action under the law, from its commencement to the execution of the judgment. Applying the test to the instant appeals, we are in no doubt that the notices impugned in the petitions under Article 199 of the Constitution were a step in the proceedings and the law applicable provided for an appeal against the original order. We are in no manner of doubt that these appeals are not competent.
21.That the challenge in the constitutional petitions was to 'proceedings' can be demonstrated from the appellant's own showing in those petitions and in these appeals, too. In the appeals, it has been stated that the department 'initiated proceedings in respect of tax year 2011 under sections 161/205 of the Ordinance' (ICA 250/2015). (Expect for the variation in the tax year, the rest of the text is similar in other appeals, in verbatim). Likewise, in all petitions, the prayer (b) was to the following effect:--
'Very initiation of proceedings by the respondent No.3 may kindly be declared unlawful and void ab initio, illegal and contrary to the statutory stipulation.'
22.Thus, it is evident from the foregoing that the appellants had in contemplation the proceedings, as the term is intended to mean in the proviso to subsection (2) of section 3 of the Ordinance, while laying a challenge to the notices in the petitions. The appellants cannot now turn volte face and take a stance which is contrary to their admitted position and is the basis of their case.
23.Proviso to subsection (2) of section 3 of the Ordinance seems to have a purpose. By the use of the tool of purposive interpretation, some of the reasons for limiting the sweep of the appeals to arise from petitions under Article 199 of the Constitution can be stated thus:
(i)Interlocutory proceedings/actions should not be allowed to be challenged as a normal course. It increases the burden on judicial resources.
(ii)Constitutional jurisdiction should be used sparingly and not as a matter of routine and the scope of appeal arising therefrom must also be confined by parameters.
(iii)Matters should be permitted to be dealt with by statutory forums and ought not to be short circuited or circumvented by collateral attacks. This would defeat the intention of the legislature.
(iv)A person cannot be conferred the benefit of two appeals during the course of the same proceedings; one arising out of the original order and the order arising out of the Ordinance.
24.For what has been stated above, these appeals are not competent and are dismissed.
| Sr. No. | ICA Nos. | Title | Impugned Judgment (Dated) |
| 1 | 248 of 2015 | Messrs Kohinoor Sugar Mills Ltd. v. The F.B.R | 5-6-2014 |
| 2 | 249 of 2015 | Messrs Crescent Cotton Mills v. F.B.R | -do- |
| 3 | 250 of 2015 | Messrs Nishat Chunian Power Ltd. v. (sic) | -do- |
| 4 | 251 of 2015 | Messrs Nestol Technology Ltd. v. F.B.R | -do- |
| 5. | 252 of 2015 | Messrs Nishat Mills v. F.B.R | -do- |
| 6 | 253 of 2015 | Messrs Gujranwala Electric Supply v. F.B.R | -do- |
| 7 | 254 of 2015 | Messrs Maqsood Faisal Paper v. F.B.R. | -do- |
| 8 | 255 of 2015 | Messrs Gujranwala Electric v. F.B.R. | -do- |
| 9 | 256 of 2015 | Kohinoor Sugar Mills v. F.B.R. | -do- |
| 10 | 257 of 2015 | Messrs Ideal Spinning Mills v. F.B.R. | -do- |
| 11 | 258 of 2015 | Gujranwala Electric Supply v. F.B.R. | -do- |
| 12 | 259 of 2015 | Messrs Maple Leaf Cement Factory v. F.B.R. | -do- |
| 13 | 260 of 2015 | Messrs At-Tahur (Pvt.) Ltd. v. F.B.R. | -do- |
| 14 | 261 of 2015 | Messrs Kohinoor Textile Mills v. F.B.R. | -do- |
| 15 | 262 of 2015 | Messrs Nishat Ltd. v. F.B.R. | -do- |
| 16 | 263 of 2015 | -do- | -do- |
| 17 | 264 of 2015 | RYK Mills Ltd. v. F.B.R. | -do- |
| 18 | 265 of 2015 | Messrs Kohinoor Textile v. F.B.B. | -do- |
| 19 | 266 of 2015 | Messrs Nishat Mills Ltd. v. F.B.R. | -do- |
| 20 | 268 of 2015 | Messrs Netsol Innovation v. F.B.R. | -do- |
| 21 | 269 of 2015 | Messrs Pak Feed Industries v. F.B.R. | -do- |
| 22 | 270 of 2015 | Messrs Gujranwala Electric v. F.B.R. | -do- |
MH/N-15/LIntra Court Appeal dismisse