M/S Aam Developers etc. vs Fbr etc.

2021 P T D 1060

[Lahore High Court (Multan Bench)]

Before Jawad Hassan, J

Messrs AAM DEVELOPERS (PRIVATE) LIMITED

Versus

FEDERAL BOARD OF REVENUE and others

Writ Petition No.4203 of 2020, decided on 17th March, 2020.

Income Tax Rules, 2002---

----R.44(4)---Recovery of income tax---Temporary relief to taxpayer from coercive measures / recovery of disputed income tax amount---Scope--- Petitioner impugned notice under R.44(4) of Income Tax Rules, 2002 on the ground that same was issued without lawful authority---Validity- --High Court disposed of the constitutional petition on consent of petitioner that matter be referred to Department to be decided in accordance with law within a period of three months via a speaking order, and High Court, as stop-gap measure, granted temporary relief to petitioner by directing Department not to take coercive measures for recovery of disputed amount till finalization of matter by Department---Constitutional petition was disposed of, accordingly.

Messrs Pak-Saudi Fertilizers Ltd. v. Federation of Pakistan 2002 PTD 679; Sindh Z.N. Exports (Pvt.) Ltd v. Collector of Sales Tax 2003 PTD 1746; Messrs Pearl Continental Hotel, Lahore through Director Finance v. Customs, Excise and Sales Tax Appellate Tribunal, Lahore 2005 PTD 1368; Sun-Rise Bottling Company (Pvt.) Ltd. through Chief Executive v. Federation of Pakistan 2006 PTD 535; Karachi Shipyard and Engineering Works Ltd. Karachi v. Additional Collector of Customs Excise and Sales Tax (Adjudication-III) Government of Pakistan, Karachi and 2 others 2006 PTD 2207; Pak Suzuki Motors Co. Ltd. through Senior General Manager v. Collector of Customs through Assistant Collector (Processing), Karachi 2006 PTD 2237; Daewoo Pakistan Motorway Service Ltd. Lahore v. CIR Zone-II, Lahore 2012 PTD 1976; Chenab Board Faisalabad v. CIR, RTO, Faisalabad 2012 PTD 941; Honda Point (Pvt.) Ltd. Lahore v. CIR, RTO, Lahore 2015 PTD 1354 and Mari Petroleum Company Ltd. v. Appellate Tribunal Inland Revenue 2016 PTD 2406 rel.

Muhammad Imran Ghazi for Petitioner.

Syed Najam-ul-Saqib Mumtaz, Assistant Attorney General (on Court call).

Date of hearing: 17th March, 2020.

JUDGMENT

JAWAD HASSAN, J.----The Petitioner, Messrs Aam Developers (Private) Limited, has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 against notice dated 25th of February, 2020 ("the impugned Notice") issued by the Respondent No.5 under Rule 44(4) of the Income Tax Rules, 2002 ("the Rules")

2.It is contended by learned counsel that the Petitioner is duly registered with the Respondent. Federal Board of Revenue ("the FBR") 2014 and it has excellent track record with the FBR where he is regularly paying the income tax in compliance with the provisions of the Income Tax Ordinance, 2001 ("the Ordinance") and there is no default on his part in this regard. He maintains that the Impugned Notice is illegal and without jurisdiction because the Respondent No.5 whatsoever has not authority to deal with the matter as per Notification dated 03.12.2019 issued by the Respondent No.3.

3.On the other hand, learned Law Officer has objected to the maintainability of this petition by stating that under the Doctrine of Ripeness, the matter has not been ripened by the concerned authority as per the Ordinance and the Rules. He explains that the Petitioner has not exhausted all the remedies available to him under the tax regime till the institution of tax reference before this Court and further he may agitate the points raised in this petition before the concerned authority.

4.In response, learned counsel for the Petitioner submits that the Respondent No.2 is the relevant authority to deal with the issue and the Petitioner be satisfied if the matter be referred to him, however, he prays that the Respondents may be restrained from recovering the disputed amount under the garb of the Impugned Notice till decision of the matter by the Respondent No.2 because Article 10-A of the Constitution provides right of fair trial and due process to determine the rights and obligations of every citizen. In support of his arguments learned counsel has placed reliance on the cases of Messrs Pak-Saudi Fertilizers Ltd. v. Federation of Pakistan (2002 PTD 679), Sindh Z.N. Exports (Pvt.) Ltd v. Collector of Sales Tax (2003 PTD 1746), Messrs Pearl Continental Hotel, Lahore through Director Finance v. Customs, Excise and Sales Tax Appellate Tribunal, Lahore (2005 PTD 1368), Sun-Rise Bottling Company (Pvt.) Ltd. through Chief Executive v. Federation of Pakistan (2006 PTD 535), Karachi Shipyard and Engineering Works Ltd. Karachi v. Additional Collector of Customs Excise and Sales Tax (Adjudication-III) Government of Pakistan, Karachi and 2 others (2006 PTD 2207), Pak Suzuki Motors Co. Ltd. through Senior General Manager v. Collector of Customs through Assistant Collector (Processing), Karachi (2006 PTD 2237), Daewoo Pakistan Motorway Service Ltd. Lahore v. CIR Zone-II, Lahore (2012 PTD 1976), Chenab Board Faisalabad v. CIR, RTO, Faisalabad (2012 PTD 941), Honda Point (Pvt.) Ltd. Lahore v. CIR, RTO, Lahore (2015 PTD 1354) and Mari Petroleum Company Ltd. v. Appellate Tribunal Inland Revenue (2016 PTD 2406) wherein direction was issued to the authorities to decide the matter and temporary relief was granted as stopgap measures.

5.In view of the above, let a copy of this petition along with all the annexures be remitted to the Respondent No.2 who will decide the issue in hand, after hearing all concerned including the Petitioner, strictly in accordance with the relevant provisions of the Ordinance and the Rules through a speaking order within three months from the receipt of certified copy of this order. In the meanwhile, I am inclined to grant, as a stop gap measure, temporary relief to the Petitioner

by directing the Respondents not to take coercive measures against the Petitioner recovery of the disputed amount till finalization of the matter by the Respondent No.2.

Disposed of.

KMZ/A-6/L Order accordingly.