NATIONAL TESTING SERVICE PAKISTAN VS ASSISTANT COMMISSIONER I.R., UNIT-I, ZONE-I, 2017 PTD-ISLAMABAD 873 (2017)

Income Tax Ordinance (XLIX of 2001)---

----Ss.132---Disposal of appeals by the Income Tax Appellate Tribunal---Taxpayer/petitioner impugned recovery of tax made from it, by the Department---Contention of Department was, inter alia, that Constitutional petition was not maintainable since appeal of the petitioner was pending before the Appellate Tribunal---Validity---Matter was pending before the Appellate Tribunal, and therefore the Tribunal was competent to consider and determine whether or not provisions of Income Tax Ordinance, 2001 had been violated and the Appellate Tribunal was vested with power and jurisdiction to consider and record its finding relating to the questions raised by the taxpayer---High Court observed that an adequate and efficacious remedy was available to the petitioner---Constitutional petition was disposed of, with the observation that the Appellate Tribunal was expected to decide and dispose of the petitioner's appeal within a period of six months, as expressed in S.132(2A) of the Income Tax Ordinance, 2001.

Brothers Engineering (Pvt.) Ltd. v. Appellate Tribunal Sales Tax 2003 PTD 1836 and Sun-Rise Bottling Company (Pvt.) Ltd. Through Chief Executive v. Federation of Pakistan and 4 others 2006 PTD 535 ref.

Sayyid Murtaza Ali Pirzada for Petitioner.

Babar Bilal for Respondent No.1.

Date of hearing: 23rd January, 2017.

JUDGMENT

ATHAR MINALLAH, J.---The petitioner has invoked the jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 seeking various prayers relating to the recovery of tax.

2.The facts, in brief, are that the respondent No.1 passed an order dated 15-04-2015 under section 122(1) read with section 122(5) of the Income Tax Ordinance, 2001 (hereinafter referred to as the "Ordinance of 2001"). The petitioner filed an appeal before the Commissioner Inland Revenue Appeals-II, Islamabad (hereinafter referred to as the "CIR (A)"). The appeal was partially allowed vide order dated 22-09-2015. The petitioner assailed the said order before the learned Appellate Tribunal Inland Revenue (hereinafter referred to as the "Tribunal"). The latter vide order dated 12-11-2015 granted an injunctive order and restrained the respondents from recovery of the tax till disposal of the appeal. The respondent No.1 by giving effect to the appeal order passed by the learned CIR (A), issued notice/order dated 09-11-2015 in respect of the recovery of the tax mentioned therein. Admittedly, the tax has been recovered pursuant to the order dated 09-11-2015. Moreover, it is also an admitted position that the appeal of the petitioner is pending before the learned appellate Tribunal.

3.The learned counsel appearing on behalf of the petitioner has placed reliance on the order dated 03-03-2016, passed by a learned Single Judge in Chambers of this Court in W.P.No.4187/2015, in support of his contention that direct resort to section 124 of the Ordinance of 2001 cannot be made; compliance with the mandatory provisions of section 138 is a precondition for issuing an order under section 140; the recovery of the disputed tax could not have been made since the learned Tribunal vide order dated 12-11-2015 had restrained the respondents from doing so; the order of the learned Tribunal has been violated; reliance has been placed on "Brothers Engineering (Pvt.) Ltd. v. Appellate Tribunal Sales Tax", 2003 PTD 1836 and "Sun-Rise Bottling Company (Pvt.) Ltd. Through Chief Executive v. Federation of Pakistan and 4 others", 2006 PTD 535.

4.The learned counsel for the Department on the other hand has contended that; the appeal of the petitioner is pending before the learned Tribunal and, therefore, the instant petition is not maintainable; an alternate remedy is available to the petitioner company for filing an application for refund; the case of the petitioner is to the extent that the order dated 12-11-2015 has been violated and, therefore, it would not be appropriate for this Court to decide the matter since it would prejudice the case of the parties before the learned Tribunal.

5.The learned counsel have been heard and the record perused with their able assistance.

6.Admittedly, the appeal of the petitioner is pending before the learned Tribunal. The latter vide order dated 12-11-2015 had restrained the respondents from recovering the amount "during such period or disposal of appeal whichever is earlier". It is also not denied that the amount has already been recovered and, therefore, the law provides for an adequate remedy by way of seeking refund of the amount. Since the appeal of the petitioner is pending before the learned Tribunal and the case of the petitioner is based on violation of order dated 12-11-2015 passed by the latter, therefore, it would be appropriate not to discuss the merits or to make any observation in this regard lest it may prejudice the proceedings pending before the learned Tribunal. The matter is pending before the learned Tribunal and, therefore, the latter is competent to consider and determine whether or not its order and the provisions of the Ordinance of 2001 have been violated. The learned Tribunal is vested with the power and jurisdiction to consider and record its findings relating to the questions, which have been raised by the petitioner in the instant petition. Moreover, it is settled law that a thing ought to be done in accordance with the prescribed manner. Whether or not the petitioner is entitled to the recovery of the amount which has been recovered, can definitely be determined by the learned Tribunal in the proceedings pending before it or if the petitioner files an application for refund, the authority competent in this regard. This Court is, therefore, satisfied that adequate and efficacious remedy is available to the petitioner.

7.The learned counsel has made a request that the appellate Tribunal be directed to decide the pending appeal expeditiously. In this regard, it is noted that the learned appellate Tribunal is a creation of the Ordinance of 2001. The learned Tribunal is obviously expected to decide and dispose of the appeal having regard to the provisions of the Ordinance of 2001. Subsection 2(A) of section 132 provides that the appellate Tribunal shall decide an appeal within six months of its filing. This Court, therefore, expects that having regard to the legislative intent, the learned Tribunal shall decide the 1 pending appeal within the time specified in the Ordinance of 2001.

8.The petition is, therefore, disposed of in the above terms.

KMZ/18/Isl Order accordingly.