MUHAMMAD ANWAR VS FEDERATION OF PAKISTAN, 2017 PTD-LAHORE-HIGH-COURT-LAHORE 2011 (2017)

Establishment of the Office of Federal Tax Ombudsman Ordinance (XXXV of 2000)---

----S. 32---Representation to the President of Pakistan--- Limitation of 30 days to file representation to the President under S.32 of the Establishment of the Office of Federal Tax Ombudsman Ordinance, 2000---Valid grounds for condonation of delay---Scope--- Representation filed by Department against order of the Federal Tax Ombudsman, in a complaint filed by the petitioner, to the President under S.32 of the Establishment of the Office of Federal Tax Ombudsman Ordinance, 2000, was allowed---Contention of the petitioner was that the said representation was barred by time and therefore could not have been filed---Validity--- Only ground mentioned for condonation of delay in the said representation was the transfer of the Commissioner Inland Revenue and structural changes of the jurisdiction of the Federal Board of Revenue, which ground alone was not sufficient for condoning of delay---Delay of each and every day had to be explained, which was not done in the present case, and the said representation was allowed without adverting to said vital aspect---Order allowing representation of the Department before the President, of Pakistan was set aside---Constitutional petition was allowed, in circumstances.

Waheed Shahzad Butt for Petitioner.

Sarfraz Ahmad Cheema for Respondent/FBR.

ORDER

SHAMS MEHMOOD MIRZA, J.---This writ petition seeks to challenge order dated 17.11.2016 passed by respondent No.1 whereby the representation file by respondents Nos.2 and 3 was allowed and order dated 08.06.2016 passed by Federal Tax Ombudsman was set aside.

2.Facts of the case in brief are that the petitioner filed a complaint before the Federal Tax Ombudsman against respondent No.3 for not proceeding with the case for income tax refund of the petitioner. After hearing the parties, the Federal Tax Ombudsman on 22.02.2017 passed order on the petitioner's complaint directing respondent No.3 to revisit his order passed under section 122(5A) of the Income Tax Ordinance, 2001 and to submit compliance report within 30 days. The petitioner also filed a review application before the Federal Tax Ombudsman which was dismissed on 08.06.2016. Respondents Nos.2 and 3 filed representation against order dated 08.06.2016 which representation was allowed on 06.09.2016 by respondent No.1, hence this writ petition.

3.Learned counsel for the petitioner submitted that the representation was patently time barred as section 32 of the Federal Tax Ombudsman Ordinance, 2000 stipulates that representation shall be filed within a period of thirty days from the date of passing of the order by the Federal Tax Ombudsman.

4.Learned counsel for the respondents, on the other hand, stated that the application for condonation of delay was filed with the representation and as such respondent No.1 was justified in passing the order impugned in this petition.

5.Arguments heard and record perused.

6.The representation filed under section 32 of the Federal Tax Ombudsman Ordinance, 2000 along with the application for condonation of delay was filed on 06.09.2016. The only ground mentioned in the application seeking condonation of delay was that on account of transfer of the Commissioner Inland Revenue and structural changes of jurisdiction by the Federal Board of Revenue, the representation could not be filed in time. This ground alone does not constitute sufficient cause for condoning the delay. It is furthermore settled law that delay of each and every day has to be explained which was not done in this case by respondents Nos.2 and 3. Respondent No.1 too without adverting to this vital aspect of the matter, set aside order dated 08.06.2016.

7.Even otherwise, respondents Nos.2 and 3 did not challenge the Original order passed by the Federal Tax Ombudsman on 22.02.2016 which, therefore, attained finality. Order dated 08.06.2016 passed by the Federal Tax Ombudsman simply dismissed the review application filed by the petitioner. There was thus no occasion for respondents Nos.2 and 3 to challenge the said order by filing the representation before respondent No.1. The perusal of the order passed by respondent No.1, however, shows that in the garb of hearing representation against order dated 08.06.2016, he set aside the findings of the Federal Tax Ombudsman made through order dated 22.02.2016.

8.There is, therefore, no doubt in the mind of this Court that respondent No. 1 has passed a wholly illegal and unlawful order which is not sustainable in law and facts of the case. Representation filed by respondents Nos.2 and 3 was patently time barred and as such could not have been entertained by respondent No.1. Similarly, the findings of the Federal Tax Ombudsman made on 22.02.2016 had attained finality for want of further challenge and, therefore, could not have been set aside by respondent No.1 while hearing representation against order dated 08.06.2016 through which the Federal Tax Ombudsman simply dismissed the review application filed by the petitioner.

9.In this view of the matter, this writ petition is allowed and order dated 17.11.2016 is set aside being without lawful authority and of no legal effect.

KMZ/M-116/L Petition allowed.