Mian MUSHTAQ AHMAD VS GOVERNMENT OF PUNJAB, 2017 PTD-LAHORE-HIGH-COURT-LAHORE 1050 (2017)

Punjab Sales Tax On Services Act (XLII of 2012)---

----S. 63---Law Reforms Ordinance (XII of 1972) S. 3(2) & Proviso---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Intra-court appeal---Appealable orders---Alternate Remedy---Scope---Appellant in intra-court appeal impugned the order passed in Constitutional petition whereby appellant's Constitutional petition against order of Commissioner, Punjab Revenue Authority was dismissed on the ground that the remedy of appeal under S. 63 of the Punjab Sales Tax on Services Act, 2012 was available to the appellant---Validity---Appellants had not challenged the order of the Commissioner, Punjab Revenue Authority in appeal before the competent forum and proviso to S. 3(2) of the Law Reforms Ordinance, 1972 barred remedy of intra-court appeal in cases where the relevant law provided the remedy of appeal, revision or review---Impugned order of the Commissioner, Punjab Revenue Authority, had clearly mentioned that the appellant had the remedy of appeal against said order in the manner prescribed in S.63 of the Punjab Sales Tax on Services Act, 2012---Intra-court appeal being not maintainable, was dismissed, in circumstances.

Muhammad Aslam Sukhera and others v. Collector Land Acquisition, Lahore Improvement Trust, Lahore and another PLD 2005 SC 45 rel.

Shahbaz Siddique for Appellant.

Sultan Mahmood, Assistant Advocate-General.

Nadeem Salah ud Din, DS (Legal) PRA.

Munir Ahmad, DC (Enf) Faisalabad PRA.

ORDER

Through this order we intend to decide the instant Intra Court Appeal as well as I.C.A. No.1467/2016, I.C.A. No.1468/2016, I.C.A. No.1469/2016 and I.C.A. No.1470/2016 as all the same are outcome of impugned order dated 15.10.2016 passed in W.P. No.31144/2016 by the learned Single Judge whereby the Appellants' petitions were dismissed on the ground that alternate remedy in the shape of appeal was available to the Appellants.

2.Learned counsel for the Appellants submitted that the impugned order is liable to be set aside on the grounds that the same is illegal and has been passed against the facts on record; that a discriminatory attitude has been adopted against the Appellants as the Respondent No. 3 has not taken any action against the other similarly placed persons (Ada Owners), as such mala fide is surface on the record; that although the law provided remedy of appeal against the order aggrieved by the Appellants but in view of violation of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution") the writ petitions were filed; that the order dated 25.07.2016 and notice dated 29.09.2016 passed by the Respondent No.3 directing the Appellants to submit income tax returns were without jurisdiction; that the learned Single Judge while passing the impugned order has totally ignored the facts of violation of Article 25 of the constitution.

3.Learned Law Officer vehemently contested the arguments advanced by the learned counsel for the Appellants and prayed for dismissal of all the appeals on the ground that there is no illegally or perversity in the impugned order; that in presence of alternate remedy the writ petitions were not competent before this Court.

4.Basically the Appellants are aggrieved of order dated 25.07.2016 passed by the Deputy Commissioner Enforcement-II of the Punjab Revenue Authority ("PRA"). The perusal of said order reveals that appeal lies against it to the Commissioner (Appeals) of the PRA within 30 days under section 63 of the Punjab Sales Tax on Service Act, 2012 read with Punjab Sales Tax on Services (Adjudication and Appeals) Rules, 2012. For the sake of brevity said section is reproduced herein below which is as follows:--

63. Appeals.---(1) Any person, other than the Authority or any of its employees, aggrieved by any decision or order passed under section 60 by an officer of the Authority other than Commissioner may, within thirty days of the date of receipt of such decision or order, prefer an appeal to the Commissioner (Appeals).

(2) An appeal under subsection (1) shall--

(a)be in the prescribed form;

(b)be verified in the prescribed manner;

(c)state precisely the grounds upon which the appeal is made;

(d)be accompanied by the fee specified in subsection (3); and

(e)be lodged with the Commissioner (Appeals) within the time set out in subsection (4).

(3) The prescribed fee shall be--

(a)Where the appellant is a company, one thousand rupees: or

(b)Where the appellant is not a company, two hundred rupees.

(4) An appeal shall be preferred to the Commissioner (Appeals) within thirty days of the receipt of the decision or order passed under section 60.

(5) The Commissioner (Appeals) may, upon application in writing by the appellant, admit an appeal after the expiration of the period specified in subsection (4) if the Commissioner (Appeals) is satisfied that the appellant was prevented by sufficient cause from lodging the appeal within that period.

5.From the above it is clear that against the decision of the Respondent No.3 a remedy of appeal is provided, as such the order dated 25.07.2016 was appealable and the Appellants have never challenged the same in appeal before the competent forum. Therefore, we see no illegally or jurisdictional error in the impugned order which has been passed in accordance with law and hence, does not warrant any interference by us.

6.Furthermore, the instant Intra Court Appeal is filed under section 3 of the Law Reforms Ordinance, 1972 whereas the object of proviso to subsection (2) of section 3 of the Ordinance bars the remedy of Intra Court Appeal in those cases in which the relevant law provides the remedy of appeal, revision or review. It is important to note that on the first page the order dated 25.07.2016 it is clearly mentioned that appeal against this order lies before the Commissioner (Appeals) Punjab Revenue Authority, Lahore, within thirty days of the date of its receipt in the manner prescribed in section 63 of the Punjab Sales Tax on Services Act, 2012 read with the Punjab Sales Tax on Services (Adjudication and Appeals) Rules, 2012. Reliance in this regard is placed on the case titled Muhammad Aslam Sukhera and others v. Collector Land Acquisition, Lahore Improvement Trust, Lahore and another (PLD 2005 Supreme Court 45) wherein the Hon'ble Supreme Court of Pakistan has 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."

7.In view of above, the instant appeal as well as the abovementioned appeals are not maintainable; consequently the same are hereby dismissed.

KMZ/M-15/L Appeal dismissed.