SHAHZADI POLYPROPYLENE INDUSTRIES VS FEDERATION OF PAKISTAN, 2017 PTD-LAHORE-HIGH-COURT-LAHORE 2019 (2017)

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

----Ss. 9 & 32---Income Tax Ordinance (XLIX of 2001) Ss. 170 & 120---Constitution of Pakistan, Art. 199---Law Reforms Ordinance (XII of 1972) S. 3 & proviso--- Complaint against non-issuance of income tax refund---Jurisdiction of the Federal Tax Ombudsman in relation to cases of tax refund---Intra-court appeal---Maintainability---Petitioner's complaint before the Federal Tax Ombudsman regarding non-issuance of income tax refund was decided in petitioner's favour, which was subsequently set aside by order in Representation to the President of Pakistan filed by Department---Petitioner's Constitutional petition against said order in Representation was dismissed---Validity---Federal Tax Ombudsman had no jurisdiction to investigate or inquire into matters which related to assessment of income , determination of liability of tax , interpretation of law, rules and regulations relating to assessment/determination in respect of which legal remedies of appeal, review or revision were available under the relevant legislation---Intra Court appeal was hit by proviso to S.3(2) of the Law Reforms Ordinance, 1972 as S. 32 of the Establishment of the Office of Federal Tax Ombudsman Ordinance, 2000 provided remedy of representation before the President against recommendations of the Federal Tax Ombudsman---Intra Court appeal was dismissed, in circumstances.

Waheed Shahzad Butt for Appellant.

ORDER

MUDASSIR KHALID ABBASI, J.---This Intra Court Appeal under section 3(2) of Law Reforms Ordinance, 1972 has been directed against an order dated 27.04.2017 passed in W.P. No.5999 of 2017.

2.Precisely, the facts of the case are that appellant is a registered taxpayer under Income Tax Ordinance, 2001. Stance taken by the appellant is that he has paid Rs.3,608,057/- as an excess amount of income tax for the year 2010 and is entitled for refund of the same. Despite repeated requests, respondent No.3 has not issued voucher, appellant filed an appeal before Federal Tax Ombudsman/respondent No.5 which was disposed of in his favour vide order dated 15.09.2016. Respondent No.3 has challenged order dated 15.09.2016 in terms of Section-32 of Federal Tax Ombudsman Ordinance by filing representation before respondent No.1 which was accepted on 28.11.2016. Feeling aggrieved, appellant filed W.P. No.5999 of 2017 challenging order dated 28.11.2016 before Hon'ble Single Judge in Chamber which resulted into dismissal vide order dated 27.04.2017, impugned in this Intra Court Appeal.

3.Learned counsel for the appellant has argued that Hon'ble Single Judge in Chamber without considering the law and merits of the case passed the impugned order in violation of pronouncements of the Hon'ble Supreme Court in different cases, therefore, same is liable to be set aside.

4.Heard. Record perused.

5.Grievance of the appellant before the Federal Tax Ombudsman was against non-issuance of income tax refund for the year 2010. Complaint filed by the appellant before Ombudsman was allowed it was assailed before respondent No.1 by respondent No.3 and was allowed. Appellant challenged the same before the Hon'ble Single Judge in Chamber which was dismissed through the impugned order.

6.Questions of primary importance in this case pertain to legal propositions that when the remedy of appeal lies in terms of section 170(5) of the Income Tax Ordinance before the Commissioner, Inland Revenue and if Commissioner fails to pass an order under section 170(4) of Act ibid, whether Federal Tax Ombudsman could take cognizance of the matter. In this regard, it would be appropriate to reproduce the relevant provision of the Federal Tax Ombudsman Ordinance, 2000 as under:--

"9. Jurisdiction, functions and powers of the Federal Tax Ombudsman.---(1) Subject to subsection (2), the Federal Tax Ombudsman may on a complaint by any aggrieved person, or on a reference by the President, the Senate or the National Assembly, as the case may be, or on a motion of the Supreme Court or a High Court made during the course of any proceedings before it or of his own motion, investigate any allegation of maladministration on the part of the Revenue Division or any Tax Employee.

(2) The Federal Tax Ombudsman shall not have jurisdiction to investigate or inquire into matters which--

(a) ..; or

(b)relate to assessment of income or wealth, determination of liability of tax or duty, classification or valuation of goods, interpretation of law, rules and regulations relating to such assessment, determination, classification or valuation in respect of which legal remedies of appeal, review or revision are available under the Relevant Legislation."

Sections 170(4) and (5) of Income Tax Ordinance, 2001 is also reproduced as under:--

170. Refunds.---(1) .

(1A)

(2) ..

(3) ..

(4) The Commissioner shall, within [sixty] days of receipt of a refund application under subsection (1), serve on the person applying for the refund an order in writing of the decision [after providing the taxpayer an opportunity of being heard.

(5) A person aggrieved by-

(a) an order passed under subsection (4); or

(b) the failure of the Commissioner to pass an order under subsection (4) within the time specified in that subsection, may prefer an appeal under Part III of this Chapter.

7.Combined reading of afore-cited provisions of law makes it abundantly clear that impugned order passed by Hon'ble Single Judge in Chamber is in accordance with law on the ground that Federal Tax Ombudsman has no jurisdiction to investigate or inquire into the matters which relates to the assessment of income, determination of liability of tax, interpretation of law, rules and regulations relating to the said assessment/determination in respect of which legal remedies of an appeal, review or revision are available under the relevant legislation. Even otherwise, this Intra Court Appeal is hit by proviso of Section 3 of Land Reforms Ordinance as the Section 32 of the Federal Tax Ombudsman Ordinance, 2000 provides remedy of representation before the President against the recommendations of Federal Tax Ombudsman. Section 32 of Federal Tax Ombudsman Ordinance, 2000 is reproduced as under:--

32. Representation to President.---The Revenue Division or any person aggrieved by a recommendation of the Federal Tax Ombudsman may, within thirty days of the recommendation, make a representation to the President who may pass such order thereon as he may deem fit.

In view of foregoing reasons, this Intra Court Appeal is dismissed in limine.

KMZ/S-58/L Appeal dismissed.