IN THE HIGH COURT OF SINDH, KARACHI
CP No.D-3422 of 2014
alongwith
C.P. Nos.D-3374, 3375, 3376, 3377,
3378, 5085 of 2014 & 5363 of 2016.
Date
|
Order
with signature of Judge |
Present:
Mr. Justice Aqeel Ahmed Abbasi
&
Mr. Justice Nazar Akbar.
18.10.2017
Mr.
Hyder Ali Khan, advocate for the Petitioner
a/w.
Mr. Samiur Rehman, advocate.
Mr.
M. Sarfraz Ali Metlo, advocate for Respondent.
Mr.
Mir Hussain, Assistant Attorney General.
O R D E R
AQEEL AHMED ABBASI, J.: A common controversy has been agitated through instant petitions,
whereby, petitioners have challenged the legality of Notices issued by
respondents for the recovery of Advance Tax on the basis of estimate by the
department instant of tax payer’s own estimates in terms of Section 147 of the
Income Tax Ordinance, 2001, whereas, according to the learned counsel for the
petitioners, subject controversy has already been decided by a Divisional Bench
of this Court in a recent judgment dated 26.06.2014 passed in C.P.
No.D-3305/2014 in the case of Pakistan
Petroleum Company Limited ..Vs.. Federation of Pakistan and others, while
placing reliance in the earlier reported judgments of this Court as well as
judgment of Hon’ble Supreme Court in the case of Chairman Central Board of Revenue ..Vs.. Pak Saudi Fertilizer Ltd. (2000
PTD 3748), therefore, instant petitions are being disposed of through this
common judgment. While confronted with above factual and legal position, learned
counsel for the respondent do not dispute aforesaid position and submit that
instant petitions may be disposed of in similar terms. Accordingly, we need not
reiterate the facts of instant petitions as matter relates to interpretation of
provisions of Section 147 of the Income Tax Ordinance 2001, and would by
respectfully following the judgments already passed by High Court as well as by
the Hon’ble Supreme Court as referred to hereinabove, dispose of instant
petitions in terms of the aforesaid judgment of this Court by reproducing
relevant finding on the subject controversy in the following terms:-
“We have heard both the learned
counsel perused the impugned order and case law relied upon by the learned
counsel for the petitioner on the subject controversy. It will be advantageous
to reproduce the relevant para 13 of the decision of a division bench of this
Court in the case reported as 2011 PTD 1996 Karachi Port Trust, Karachi V/S
Commissioner Inland Revenue, Karachi, which reads as follows:-
“Now
we will examine if a wrong estimate is filed then what are the options
available to the Taxation Authorities to take action for filing such wrong
estimate. A perusal of section 147 leads to the conclusion that once such
estimate is filed whether right or wrong, there is no provision which provides
any authority to the Taxation Officer to discard this estimate and ask the
taxpayer to continue paying the tax in accordance with the provision of
subsection (I) of Section 147 read with subsection (4) of section 147. The learned counsel for the
respondent has also not been able to point out any provision of law which
provides such authority and therefore we are of the considered opinion that
once an estimate is filed the only option available to the Taxation Authority
is to levy default surcharge under subsection (IB) of section 205 after
completing the assessment, if such default surcharge is leviable ton the basis
of the assessment. The language of subsection (7) of section 147 is also clear
which provides an authority to the Taxation Authority to recover advance tax
not paid as if it was a tax due underan assessment order so that provisions of
section 137(2) are not violated. However, we are inclined to agree with the
learned counsel for the applicant that it does not provide them an authority
and jurisdiction to pass any order for the recovery of such tax and therefore
we are of the considered opinion that the order passed by the Taxation Officer is without proper jurisdiction and
authority and cannot be sustained.”
In view of herein above and the candid statement of the learned counsel for the respondents under instructions, the impugned order is hereby set aside. The Bank Officers of the two banks i.e. MCB PIDC Branch and Allied Bank of Pakistan PIDC Branch have also shown appearance pursuant to Court’s Notice and submitted that they have not, in any manner, shown defiance to the orders of this Court and are willing to cancel the two pay orders and credit the amount in the account of the petitioner. Since the impugned order has been set aside by this Court the amount mentioned in the pay orders is otherwise required to be immediately credited to the account of the petitioner. Petition stands disposed of along with listed applications in the aforesaid terms”.
The
above petitions stand disposed of in the aforesaid terms alongwith listed
applications, and in view of said disposal of instant petitions, the impugned Notices
issued by the respondents for the recovery of Advance Tax on the basis of their
own estimates in instant petitions, are hereby quashed.
JUDGE
JUDGE
SM