ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

C.P No.D- 320 of 2010. __________________________________________________________________

Order with signature of Judge

1. For Katcha peshi.

2. For hearing of Misc. No. 1267/10.

24.02.2010.

Mr. Shaeq Usmani, Advocate for the petitioner.

Mr. Ashiq Raza, DAG for respondent No.1

Syed Mohsin Iman, Advocate for respondent No.2

Mr. Khalid Javed Khan, Advocate for respondent No.3.

Syed Faisal Ejaz, Law Officer of KPT.

Mr. Mashhud Ahmed Jan, Chief Account Officer of KPT.

Mr. Nadeem Ahmed Farooqui, Commissioner Inland

Revenue (Audit), R.T.O, Karachi.

Mr. Rajibuddin, Additional Commissioner Audit Division,

R.T.O, Karachi.

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Mr. Khalid Javed Khan, Advocate for the respondent No.3 has filed a statement alongwith copy of an order under section 122(5A) of the Income Tax Ordinance, 2001, passed by the Additional Commissioner-A Inland Revenue Range-A, Audit Division-IV, RTO, Karachi, dated 09.02.2010, copy of which has been supplied to the counsel for the petitioner in Court today.

Mr. Shaeq Usmani, Advocate for the petitioner states that the only question involved is with regard to the interpretation of section 49(1) of the Income Tax Ordinance, 2001 as the petitioner has claimed to be exempted from Income Tax being a department of the federal Government. It seems that some question of fact may also be adverted while examining the provision of section 49(1) of the Income Tax Ordinance, and the petitioner has a remedy against the order of the Additional Commissioner, by filing an appeal before Commissioner Appeal, Inland Revenue.

In the circumstances where the law itself provides remedy, and the appellate authority also having jurisdiction to determine the question of fact alongwith law involved in the matter, in our considered opinion, the petitioner ought to be availing the remedy of filing of an appeal against the order of the Additional Commissioner Inland Revenue. The only apprehension of the petitioner's counsel is that in availing of such remedy, the respondent Income Tax Department may take some coercive measures. Mr. Khalid Javed Khan make a categorical statement on behalf of the respondent No.3 that until the determination of the matter by the Commissioner (Appeal) Inland Revenue, no coercive measures will be taken by the Income Tax Department and that in case decision goes against the petitioner, the petitioner has a remedy of filing further appeal before the Appellate Tribunal Inland Revenue which itself has a jurisdiction under the law to grant an interim relief if the same is required to be obtained by the petitioner.

In the circumstances, we dispose of this petition and also the listed application, leaving petitioner to avail remedy against the order of the Additional Commissioner Inland Revenue and as undertaken by Mr. Khalid Javed Khan that until the decision of the matter by the Commissioner (Appeal) Inland Revenue, no coercive action will be taken by the Income Tax Department against the petitioner. In case the decision of the Commissioner (Appeal) Inland Revenue goes against the petitioner, the petitioner may avail the remedy as it may be advised, but as per statute its remedy will be before the Appellate Tribunal Inland Revenue and such tribunal will also consider the application of the petitioner for grant of interim stay.

J U D G E

Aamir/PS