Present
Mr. Justice Sajjad Ali Shah.
Mr. Justice Aqeel Ahmed Abbasi.
Date of hearing : 29.02.2012
Date of order : 29.02.2012
1. C.P.No.D-2559 of 2009
Asia Petroleum Ltd Petitioner
Versus
Pakistan & others ..Respondents
2. C.P.No.D-2560 of 2009
Asia Petroleum Ltd Petitioner
Versus
Pakistan & others ..Respondents
3. C.P.No.D-2561 of 2009
Asia Petroleum Ltd Petitioner
Versus
Pakistan & others ..Respondents
4. C.P.No.D-2562 of 2009
Asia Petroleum Ltd Petitioner
Versus
Pakistan & others ..Respondents
5. C.P.No.D-2563 of 2009
Asia Petroleum Ltd Petitioner
Versus
Pakistan & others ..Respondents
6. C.P.No.D-1752 of 2010
Engro Vopak Terminal Ltd. . Petitioner
Versus
Pakistan & others ..Respondents
7. C.P.No.D-1753 of 2010
Engro Vopak Terminal Ltd .. Petitioner
Versus
Pakistan & others ..Respondents
8. C.P.No.D-1758 of 2010
Engro Vopak Terminal Ltd .. Petitioner
Versus
Pakistan & others ..Respondents
9. C.P.No.D-1897 of 2010
M/s Fauji Oil Terminal and Distribution Company . Petitioner
Versus
Pakistan & others ..Respondents
10. C.P.No.D-1898 of 2010
M/s Fauji Oil Terminal and Distribution Company . Petitioner
Versus
Pakistan & others ..Respondents
Dr. Muhammad Farogh Naseem, Advocate for the Petitioners
Mr. Muhammad Saleem Mangrio, Advocate for the Respondents
O R D E R
Aqeel Ahmed Abbasi, J. Through instant petitions, the petitioner companies, deriving income from the execution of contract meant for transportation of oil through underground pipelines have challenged the issuance of show cause notices under Section 122 (5A) of the Income Tax Ordinance 2001, issued by the respondents whereby the petitioners were called upon to show cause as to why their case may not be assessed under normal tax regime instead of assessment under final tax regime in terms of Section 115 (4) of the Income Tax Ordinance, 2001. Vires of clause (42) of Part-IV of Second Schedule of the Income Tax Ordinance, 2001 has also been challenged for being unconstitutional, ultra vires and discriminatory.
2. Today, the learned counsel for the petitioners has placed on record reported judgment of a Division Bench of this court in the case of Engro Vopak Terminal Ltd. v. Pakistan 2012 P.T.D 130, and submitted that the controversy involved in the instant petitions i.e. as to whether a person who derives income from execution of contract meant for transportation of oil through underground pipelines is liable to be assessed under final tax regime in terms of Section 115 (4) read with Section 153 of the Income Tax Ordinance, 2001, or can be subjected to normal assessment, has been resolved by this Court in the above cited judgment, whereby it has been held that the impugned show cause notices to the extant they seek to bring to tax payments received by the petitioner by way of operation of oil terminals with reference to or application of clause (42) of Second Schedule, Part-IV, to Income Tax Ordinance, 2001 are hereby quashed and set aside. Learned counsel states that these petitions involving similar controversy may be disposed of in the same terms.
3. Conversely, learned counsel for the respondent did not controvert the contention of the counsel for the petitioners, however, he has submitted that the cited judgment has duly been impugned by the respondents by filing leave to appeal before the Honble Supreme Court. Per learned counsel, while passing the cited judgment, the Division Bench of this Court did not examine the application of earlier judgments of this Court as well as of the Honble Supreme Court, hence wrongly concluded that oil terminal operators cannot be subjected to normal tax regime.
4. We have heard both the learned counsel and perused the record. From perusal of the questions framed in the above petitions and the judgment of this Court in the above cited case, it is seen that the controversy involved in the instant petitions is the same as involved in the reported judgment referred to hereinabove. Insertion of clause (42) Par-IV Schedule II has duly been approved by the division bench of this Court through above referred reported judgment, however, the operation of the impugned notices in the case of petitioners i.e. Oil Terminal Operators, to the extent they seek to bring to tax payments received by the petitioner by way of operation of oil terminals with reference to application of clause (42) Part IV Second Schedule to Income Tax Ordinance, 2001, has been quashed and set-aside.
5. Accordingly, while respectfully following the judgment of a division bench of this Court, we dispose off these petitions in the same terms of the reported judgment i.e. 2012 PTD 130.
JUDGE
JUDGE