ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No.D-5080 of 2020

______________________________________________________ Date Order with signature of Judge

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FRESH CASE:

1. For order on CMA No.21544/2020 (Urgent).

2. For order on CMA No.21545/2020 (Exemption).

3. For order on CMA No.21546/2020 (Stay).

4. For hearing of main case.

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15^th October 2020

Mr. Zain A. Jatoi, Advocate for Petitioner.

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1. Urgency granted.

2. Exemption granted, but subject to all just exceptions.

3&4. Learned counsel for the petitioner submits that before filing instant petition, on issuance of notices and demand of super tax under section 4B of the Income Tax Ordinance, 2001 for the Tax Years 2015 and 2016, petitioner filed a Constitutional Petition bearing No.D-4275 of 2020, wherein, notices were issued to the respondents on 10.09.2020 for 22.09.2020, whereas, respondents were directed not to effect the recovery of super tax or pass any order under section 4B from the petitioner pursuant to impugned notices. It has been contended by the learned counsel that petitioner approached the concerned officer intimating the Court’s order, and requested for time to submit reply, and the respondent was pleased to extend the time for submitting reply to the impugned notices for 18.09.2020. However, according to learned counsel, when petitioner approached the concerned officer for hearing on 18.09.2020, it has been learnt that orders have been passed under section 4B of the Income Tax Ordinance, 2001 for both the tax years on 17.09.2020, whereas, huge demand has been created without providing an opportunity of being heard to the petitioner in violation of law and the order passed by this Court in the aforesaid petition. Per learned counsel, petitioner has no other remedy except to invoke Constitutional jurisdiction of this Court against orders passed under section 4B by the respondents. According to learned counsel, in terms of section 127 of the Income Tax Ordinance, 2001, no appeal against the order passed under section 4B of the Income Tax Ordinance, 2001 has been provided, therefore, instant petition has been filed.

Perusal of the provisions of section 127 of the Income Tax Ordinance, 2001, prima facie, reflects that an appeal is provided against an order having the effect of enhancing the assessment or increasing the liability of taxpayer, therefore, petitioner should have availed statutory remedy in accordance with law. However, keeping in view the background of instant case, as the matter was already pending before this Court in the above petition, wherein, directions were issued to the respondents not to pass any adverse order without providing an opportunity of being heard to the petitioner, therefore, we would issue pre-admission notice to the respondents as well as D.A.G, to be served through first three modes, for 03.11.2020, when instant petition may be taken up alongwith C.P. No.D-4275/2020, whereas, comments, if any, shall be filed with advance copy to the learned counsel for petitioner. In the meanwhile, petitioner may seek appropriate remedy against the impugned order passed in the instant case in accordance with law. However, till next date of hearing, respondents may not enforce the recovery of the demand for tax years 2015 & 2016 in respect of super tax under section 4B of the Income Tax Ordinance, 2001.

J U D G E