FEDERATION OF PAKISTAN through Secretary Revenue Division, Islamabad VS SAHIB JEE, 2017 PTD-SUPREME-COURT 1481 (2017)

(Against the judgment dated 20-3-2009 of the Lahore High Court, Lahore passed in W.P. No.11983 of 2005).

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

----Ss. 11 & 32---Reference to the President against recommendation of Ombudsman---Scope---When the Revenue Division or any person was aggrieved of a recommendation made by the Federal Tax Ombudsman in terms of S.11 of the Establishment of Office of Federal Tax Ombudsman Ordinance, 2000, it/he may file a representation to the President of Pakistan within 30 days of such recommendation---Said remedy of representation, though not stricto sensu akin to an appeal, was nevertheless a statutory remedy and, therefore, the provision must be strictly construed and applied, meaning thereby that a representation was only available to either the Revenue Division or an aggrieved person as against a recommendation of the Federal Tax Ombudsman within 30 days' time.

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

----Ss. 11 & 32---Reference to the President against recommendation of Ombudsman---Scope---Section 32 of the Ordinance, providing for representation before the President, did not envisage a representation against an order passed by the Federal Tax Ombudsman which was not in the nature of a recommendation.

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

----S.14(8)---Federal Tax Ombudsman---Review, power of---Scope---Section 14(8) of the Establishment of Office of Federal Tax Ombudsman Ordinance, 2000 empowered the Ombudsman to review any finding communicated or recommendation made or any order passed by him---Said power of review either invoked on behalf of an aggrieved person or the Revenue Division had a wider scope and three kinds of decisions could be reviewed by the Ombudsman; first, the findings which were communicated in terms of S.11 of the Ordinance; second, a recommendation made by him; and third, any other order passed by him.

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

----Ss. 14(8) & 32---Reference to the President against order of Ombudsman passed in review jurisdiction---Scope---Whilst exercising power of review, if the Ombudsman sets aside his earlier decision, irrespective of whether it was a recommendation or not, and passed a new recommendation in the order of review, then such (new recommendation) shall have been passed pursuant to S. 11(1) of the Ordinance and a representation would be competent against---Conversely, where a recommendation earlier made by the Ombudsman was not set aside while exercising the power of review, the order dismissing the review petition would not tantamount to a fresh recommendation in terms of Ss.11 & 32 of the Ordinance against which a representation could be competently filed.

Khalid Abbas Khan, Advocate Supreme Court for Appellants.

Nemo for Respondent No.1.

Ex parte: for Respondents Nos.2 and 3.

Date of hearing: 19th January, 2017.

ORDER

MIAN SAQIB NISAR, C.J.--On a complaint filed by respondent No.1 (respondent) against the appellant-department, the Federal Tax Ombudsman passed an order and made a recommendation in favour of the respondent which (order) was not assailed by the appellant by way of a representation in terms of Section 32 of the Establishment of Office of Federal Tax Ombudsman Ordinance, 2000 (the Ordinance). Instead the appellant filed a review petition in terms of Section 14(8) of the Ordinance which was dismissed vide order dated 26.1.2004. This order was then challenged by the appellant through a representation under Section 32 of the Ordinance which was accepted by the President on 9.6.2005. Aggrieved, the respondent challenged the order through a constitution petition which was allowed by the learned High Court through the impugned judgment. Leave was granted by this Court in the following terms:-

"Leave is granted to consider whether the petitioners had the remedy of representation before the President of Pakistan against the order passed in review by Federal Tax Ombudsman."

2.Heard. The Ordinance is a comprehensive legislative instrument and a complete code in itself in consonance with its objects. The powers of the Federal Tax Ombudsman are enunciated by Section 14 of the Ordinance. Section 10 of the Ordinance sets out the procedure to deal with complaints or grievance petitions and the process of collecting and recording of evidence. Section 11(1) of the Ordinance prescribes "If the Federal Tax Ombudsman is of opinion that the matter considered amounts to coal-administration, he shall communicate his finding with a recommendation to the Revenue Division within a period of sixty days from the date of receipt of the complaint, reference or motion, as the case may be (emphasis supplied)". It is further provided by Section 11(2) that "The Revenue Division shall, within such time as may be specified by the Federal Tax Ombudsman, inform him about the action taken on his recommendations or the reasons for not complying with the same". Be that as it may, recourse against any recommendation made pursuant to Section 11, is provided by means of a representation to the President as prescribed by Section 32 of the Ordinance which reads 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 addition, the Federal Tax Ombudsman is also empowered by Section 14(8).to exercise the power of review. The provision reads as under:--

"The Federal Tax Ombudsman shall have the power to review any finding communicated or recommendation made or any order passed by him".

3.From the above noted provisions of the Ordinance, particularly Section 32 thereof, it is abundantly clear that when the Revenue Division or any person is aggrieved of a recommendation made by the Federal Tax Ombudsman in terms of Section 11 of the Ordinance, it/he may file a representation to the President of Pakistan within 30 days of such recommendation. This remedy of representation, though not stricto sensu akin to an appeal, is nevertheless a statutory remedy and, therefore, the provision must be strictly construed and applied, meaning thereby that a representation is only available to either the Revenue Division or an aggrieved person as against a recommendation of the Federal Tax Ombudsman within 30 days' time. Section 32 of the Ordinance does not envisage a representation against an order passed by the Federal Tax Ombudsman which is not in the nature of a recommendation. However, as mentioned earlier, Section 14(8) of the Ordinance empowers the Federal Tax Ombudsman to review "any finding communicated or recommendation made or any order passed by him". This power of review either invoked on behalf of an aggrieved person or the Revenue Division (note:- perhaps even under the exercise of suo motu powers, but as this is not a moot point before us therefore no definitive opinion is being expressed) has a wider scope and three kinds of decisions can be reviewed by the Federal Tax Ombudsman:- (i) the findings which were communicated in terms of Section 11; (ii) a recommendation made by him; or (iii) any other order passed by him. If, whilst exercising this power of review, the Federal Tax Ombudsman sets aside his earlier decision, irrespective of whether it was a recommendation or not, and passes a new recommendation in the order of review, then this (new recommendation) shall have been passed pursuant to Section 11(1) ibid and a representation would be competent against it. Conversely, where a recommendation earlier made by the Federal Tax Ombudsman is not set aside while exercising the power of review, the order dismissing the review petition would not tantamount to a fresh recommendation in terms of Sections 11 and 32 of the Ordinance against which a representation could be competently filed. In light whereof, we do not find any merit in this appeal which is hereby dismissed.

MWA/F-1/S Appeal dismissed.