WAHEED SHAHZAD BUTT VS The SECRETARY, REVENUE DIVISION, ISLAMABAD
2019 P T D 141
[Federal Tax Ombudsman]
Before Mushtaq Ahmad Sukhera, Federal Tax Ombudsman
WAHEED SHAHZAD BUTT
Versus
The SECRETARY, REVENUE DIVISION, ISLAMABAD
Complaint No. 0594/LHR/IT of 2018, decided on 18/10/2018.
Establishment of the Office of Federal Tax Ombudsman Ordinance (XXXV of 2000)---
----Ss. 9(2)(a) & 10---SRO No.1065(I)/2013, dated 20.12.2013---Jurisdiction of the Federal Tax Ombudsman---Nature and scope---Bar on the jurisdiction of the Federal Tax Ombudsman on matters which are sub-judice---Scope---Complaint against Department for failure to initiate proceedings against official(s) responsible for issuing an SRO which was declared illegal by High Court---Validity---High Court judgment whereby SRO No.1065(I)/2013, dated 20.12.2013 was declared illegal was now sub-judicebefore the High Court as an intra-court appeal, which was filed by Department against said order---Jurisdiction of the Federal Tax Ombudsman was, therefore, barred under S.9(2)(a) of the Establishment of the Office of Federal Tax Ombudsman Ordinance, 2000 and it did not matter if the said intra-court appeal was filed before or after filing of present complaint, since the High Court being a Constitutional Court shall take precedence over a quasi-judicial forum and ultimately its verdict would hold field---Complaint was dismissed, in circumstances.
Mian Munawar Ghafoor, Advisor, Dealing Officer.
Manzoor Hussain Kureshi, Advisor, Appraisal Officer.
Nemo for the Complainant.
Naveed Hassan, Second Secretary, FBR Departmental Representative.
FINDINGS
MUSHTAQ AHMAD SUKHERA, FEDERAL TAX OMBUDSMAN.---The complaint has been filed under Section 10(1) of the Federal Tax Ombudsman Ordinance, 2000 (FTO Ordinance) against failure to initiate appropriate proceedings against the official(s) responsible for issuing SRO 1065(I)/2013 dated 20.12.2013, which was declared as illegal being issued without lawful authority and of no legal effect by the Hon'ble Lahore High Court, Lahore vide judgment dated 01.03.2018.
2.The Complainant, a practicing lawyer, aggrieved at SRO 1065(I)/2013 dated 20.12.2013, challenged the same through Writ Petition (WP) No. 14621/2014 before the Hon'ble Lahore High Court. The Hon'ble Court vide judgment dated 01.03.2018 held that:
"Since the impugned notification does not comply with the constitutional mandate as expounded in Mustafa Impex, the SRO 1065(I)/2013 dated 20.12.2013 is hereby declared to be without lawful authority and of no legal effect".
3.According to the Complainant, the Amnesty Scheme (AS) 2013 announced by inserting Clause 86 of Part IV of Second Schedule to the Income Tax Ordinance, 2001 (the Ordinance) through SRO 1065(I)/2013 dated 20.12.2013, was simply to facilitate the tax dodgers/evaders. It was also in violation of the Constitution of Islamic Republic of Pakistan 1973. He contended that the above SRO was held to be unconstitutional, by the Hon'ble High Court, he approached the Deptt for taking appropriate action against the persons responsible and ensure to keep strict check to avoid such happenings in future. However, despite his repeated efforts no response has been shown, hence the instant complaint by treating the same as maladministration.
4.The complaint was sent for comments to the Secretary Revenue Division. in terms of section 10(4) of the FTO Ordinance read with Section 9(1) of the Federal Tax Ombudsmen Institutional Reforms Act, 2013. In response thereto, the FBR vide comments dated 30.05.2018 raised preliminary objection under Section 9(2)(a)&(b) of the FTO Ordinance, on the ground that the Deptt had already filed Intra Court Appeal (ICA) No.213664/2018 against the decision dated 01.03.2018 passed in Writ Petition (WP) No.14621/2014. On merits, it was contended that Complainant had just given a generic statement about introduction of any tax amnesty scheme and his own preference for an "Asset Seizure Scheme" instead of any tax amnesty. It was further contended that SROs were issued in terms of Section 53 as powers are delegated by the Legislature to the Executive. However, all SROs issued during the year were placed before the National Assembly. Furthermore, Section 241 inserted in the Finance Act, 2017, validated all the previously issued SROs through the validation clause of Section 241 which is reproduced hereunder:
"241. Validation- all notifications and orders issued and notified, in exercise of the power conferred upon the Federal Government, before the commencement of Finance Act, 2017 shall be deemed to have been validly issued and notified in exercise of those powers."
5.It was averred that notwithstanding the positions stated above, as the matter is sub judice before the Hon'ble Lahore HC in ICA the complaint may be rejected being hit by Section 9(2)(b) of the FTO Ordinance.
6.During hearing, the Complainant submitted explanation stating that the Deptt after filing of the instant complaint has filed ICA against the judgment of single bench order. He contended that no restraining order or interim relief has been allowed to the Deptt. He however, requested that disposal of the instant complaint may be kept pending till disposal of the ICA.
7.Both parties heard and record perused.
8.Evidently against the single bench judgment dated 01.03.2018 in W.P. No.14621/2014, the Deptt has preferred ICA which is now sub judice before the Hon'ble Lahore High Court. As the matter is now sub judice before a competent court, jurisdiction of this Forum is barred under Section 9(2)(a) of the FTO Ordinance. No matter, the ICA was filed before or after filing of the Complaint. The Hon'ble High Court being a Constitutional Court, shall take precedence over a quasi judicial forum and ultimately verdict of the Hon'ble High Court shall hold the field. Moreover, the Complainant's prayer regarding keeping the instant complaint pending till decision of the ICA, cannot be entertained as no extenuating circumstances exist which require keeping this matter pending for an indefinite period.
9.In view of the forgoing discussion, the complaint is dismissed being barred by section 9(2)(a) of the F.T.O. Ordinance, Case file be consigned to record.
KMZ/91/FTOComplaint dismissed.