ORIENT ELECTRONIC (PVT.) LTD. VS GOVERNMENT OF SINDH through Secretary Finance Karachi, 2017 PTD-KARACHI-HIGH-COURT-SINDH 2197 (2017)

(a) Sindh Sales Tax on Services Act (XII of 2011)---

----S. 63---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Sales tax on services---Show-cause notice, issuance of---Scope---Petitioner raised all the legal grounds including the one with regard to legality of show cause notice but could not succeed before the forums provided under the statute---Order passed by the Appellate Tribunal could be impugned in terms of S.63 of Sindh Sales Tax on Services Act, 2011---Petitioner had not availed such remedy and had filed constitutional petition---Petitioner had filed rectification application before the appellate forum which was pending disposal---Tendency to bypass or abandon the statutory forums without valid reason could not be approved---Constitutional petition was dismissed with costs.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope.

Article 199 of the Constitution casts an obligation upon the High Court to act in aid of law and to protect the fundamental rights of citizens as guaranteed under Constitution, however, within the framework of Constitution and law, whereas, this extraordinary jurisdiction of High Court can be invoked in extraordinary circumstances, when there is no alternate remedy is available or alternate remedy provided under law is inefficacious. Moreover, an aggrieved person has to demonstrate that the impugned order or the action of an authority is without jurisdiction or suffers from some patent illegality, whereas, the grievance may not involve scrutiny of evidence or determination of some disputed facts.

Anjuman Fruit Arhtian and others v. Deputy Commissioner, Faisalabad and others 2011 SCMR 279; Commissioner of Income Tax v. Hamdard Dawakhana (Waqf) Karachi PLD 1992 SC 847; Messrs Pak Saudi Fertilizers Ltd., v. Federation of Pakistan 2002 PTD 679; Bulk Shipping and Trading (Pvt.) Limited v. Collector of Customs 2004 PTD 509 and BP Pakistan Exploration and Production Inc. Karachi v. Additional Commissioner Inland Revenue 2011 PTD 647 rel.

Nadeem Yaseen for Petitioner.

Nemo for the Respondent.

Date of hearing: 28th February, 2017.

ORDER

AQEEL AHMED ABBASI, J.---Through instant petition, the petitioner has sought following relief(s):-

"That in view of the above submissions it is most respectfully prayed that show-cause notice dated 04.03.2014 and all subsequent orders including Order dated 07.12.2016 calling upon petitioner to deposit a sum of Rs.8,716,108/- may graciously be declared as illegal, unlawful and unwarranted and as a consequence thereof the respondent may kindly be directed to immediately cancel the same.

Any other relief that this Honorable Court deems fit and appropriate, in the facts and circumstances of the case, may also be granted."

2.Attention of the learned counsel for the petitioner was drawn to office objection with regard to maintainability of instant petition, whereby, the petitioner was required to assist as to how instant petition is maintainable against an order dated 07.12.2016 passed in Appeal No.AT-131/2015 by the Appellate Tribunal Sindh Revenue Board at Karachi in the instant matter, which order can be assailed by filing a reference under Section 63 of the Sindh Sales Tax on Services Act, 2011, before the High Court. In response to such query, learned counsel for the petitioner submits that since a rectification application has been filed by the petitioner before the Appellate Tribunal Sindh Revenue Board at Karachi against the order passed in the aforesaid appeal, therefore. instead of filing a reference the petitioner has filed instant petition under Article 199 of the Constitution on the ground that the very Show-Cause Notice issued on 04.03.2014 and the subsequent orders passed in the instant matter, including Order-in-Original No.47/2014 dated 24.09.2014, Order-in-Appeal No.55/2015 dated 17.02.2015 as well as the Order-in-Appeal No.AT-131/2015 dated 07.12.2016 passed by the Appellate Tribunal Sindh Revenue Board Karachi are illegal and liable to be set-aside.

3.We have heard the learned counsel for the petitioner, perused the record, which reflects that pursuant to show-cause notice issued to the petitioner on 04.03.2014, Order-in-Original No.477/2014 dated 24.09.2014 was passed after providing complete opportunity of being heard to the petitioner, whereafter, the petitioner filed an appeal before the Commissioner (Appeals) Sindh Revenue Board i.e. 55/2015 under Section 59 of the Sales Tax on Services Act, 2011, which was disposed of vide order dated 17.02.2015, after providing opportunity of being heard to the petitioner, thereafter, petitioner filed another appeal i.e. Appeal No.AT-131/15 before the Appellate Tribunal, Sindh Revenue Board in terms of Section 61 of the Sindh Sales Tax on Services Act, 2011, which has also been decided on 07.12.2016, after providing opportunity of being heard to the petitioner. Record further reveals that the petitioner has raised all legal grounds, including the ground relating to the legality of the Show-Cause Notice dated 04.03.2014, however, could not succeed on such ground before the forums provided under the Statute. Learned counsel for the petitioner further intimated that against the order passed by the Appellate Tribunal, Sindh Revenue Board, the petitioner has also filed a rectification application, however, copy of such rectification application has not been annexed along with instant petition. We may observe that an order passed by the Appellate Tribunal, Sindh Revenue Board Karachi can be impugned in terms of Section 63 of the Sindh Sales Tax on Services Act, 2011, which provides for a reference against an order of Appellate Tribunal, Sindh Revenue Board, however, in the instant case, such remedy has not been availed by the petitioner on a misconceived notion that since, the petitioner has filed a rectification application against the appellate order passed by the Sindh Revenue Board in the instant case, therefore, instead of filing a reference, Constitutional Petition under Article 199 is appropriate remedy. Learned counsel for the petitioner was specifically asked to explain as to how, after having availed the statutory remedy as provided under the Sindh Sales Tax on Services Act, 2011, by submitting response to the show-cause notice and filing appeal before the Commissioner (Appeals) Sindh Revenue Board as well as appeal before the Appellate Tribunal, Sindh Revenue Board, the petitioner, instead of seeking further remedy as provided under the Statute i.e. filing a reference in terms of Section 63 of the Sindh Sales Tax on Services Act, 2011, has opted to file instant petition under Article 199 of the Constitution; challenging the legality of the Show-Cause Notice dated 04.03.2014, Order-in-Original No.477/2014 dated 24.09.2014, as well as the Order-in-Appeal No. 55/2015 dated 17.02.2015, which have stood merged in the order passed by the Appellate Tribunal Sindh Revenue Board in the instant case in Appeal No.AT-131/2015 dated 07.12.2016, however, learned counsel for the petitioner could not satisfactorily respond to such query of the Court. Tendency to bypass or abandon the statutory forums without valid reason and to file a Constitutional Petition under Article 199 of the Constitution by challenging the legality of the Show-Cause Notice as well as the Order-in-Original, which stood merged in the appellate order passed by the Commissioner (Appeals) Sindh Revenue Board in the instant case, cannot be approved as it would amount to render the statutory forums as redundant and nugatory in the eye of law.

4.It may be observed that Article 199 of the Constitution casts an obligation upon the High Court to act in aid of law and to protect the fundamental rights of citizens as guaranteed under Constitution, however, within the framework of Constitution and law, whereas, this extraordinary jurisdiction of High Court can be invoked in extraordinary circumstances, when there is no alternate remedy available or alternate remedy provided under law is inefficacious. Moreover, an aggrieved person has to demonstrate that the impugned order or the action of an authority is without jurisdiction or suffers from some patent illegality, whereas, the grievance may not involve scrutiny of evidence or determination of some disputed facts. Reliance in this regard can be placed in the case of Anjuman Fruit Arhtian and others v. Deputy Commissioner, Faisalabad and others (2011 SCMR 279), Commissioner of Income Tax v. Hamdard Dawakhana (Waqf) Karachi (PLD 1992 SC 847), Messrs Pak Saudi Fertilizers Ltd., v. Federation of Pakistan (2002 PTD 679), Bulk Shipping and Trading (Pvt.) Limited v. Collector of Customs (2004 PTD 509) and so also in the case of BP Pakistan Exploration and Production Inc. Karachi v. Additional Commissioner Inland Revenue (2011 PTD 647).

5.The upshot of the above discussion is that the grievance expressed through instant petition is without any substance, which besides being misconceived in law, also attempts to bypass and abandon a statutory forum without any reasonable ground. Moreover, the Show-Cause Notice, Order-in-Original have already merged into the order-in-appeal, which has already been dismissed and petitioner has also filed a rectification application before the appellate forum, which is pending disposal. Accordingly, instant petition was dismissed in limine along with listed applications with cost of Rs.10,000/- Rupees Ten Thousand Only) to be deposited in the account of High Court Clinic vide our short order dated 28.02.2017, and these are the reasons for such short order.

ZC/O-2/Sindh Petition dismissed in limine.