Order Sheet
IN THE HIGH COURT OF SINDH, KARACHI
Constitutional Petitions No. D-1707, D-1708,
D-1709, D-1710 & D-1711 of 2012
____________________________________________________________
Date Order with signature of Judge
Present:
1. Mr. Justice Faisal Arab
2. Mr. Justice Nadeem Akhtar
1. Constitutional Petition No. D-1707 of 2012
For Katcha Peshi and for hearing of Misc. No.9863 of 2012 :
2. Constitutional Petition No. D-1708 of 2012
For Katcha Peshi and for hearing of Misc. No.9866 of 2012 :
3. Constitutional Petition No. D-1709 of 2012
For Katcha Peshi and for hearing of Misc. No.9869 of 2012 :
4. Constitutional Petition No. D-1710 of 2012
For Katcha Peshi and for hearing of Misc. No.9872 of 2012 :
5. Constitutional Petition No. D-1711 of 2012
For Katcha Peshi and for hearing of Misc. No.9875 of 2012 :
Petitioner : Fauji Oil Terminal & Distribution Company Ltd.,
through Barrister Dr. Muhammad Farogh Naseem.
Respondents : Pakistan, through the Secretary, Revenue
Division & Ex-Officio Chairman, Federal Board
of Revenue, Islamabad& 2 others,
through Mr. Siddique Mirza Advocate.
Date of hearing : 28-05-2012.
J U D G M E N T
NADEEM AKHTAR, J.- All the above mentioned five petitions were allowed by the following common short order announced by us on 28.05.2012 :-
"For the reasons to be recorded later on, this petition is allowed to the extent that recovery proceedings shall not be carried out against the petitioner until the Tribunal, which is seized of the matter, delivers judgment. We further direct the Tribunal to decide the said case that was reserved for judgment on 17.02.2012, by 15.06.2012. A copy of this order be despatched to the Tribunal."
Since facts of all these petitions and the questions of law involved therein are common, we deem it proper and convenient to pass this common judgment in respect of all these five petitions.
2. Facts of these cases are that the petitioner, which is an unlisted public company, is a registered Terminal Operator and is engaged in the business of maintaining, handling and unloading of bulk cargo oil from ships. It is the case of the petitioner that such business is being carried out by the petitioner under an agreement dated 08.12.1992 between the petitioner and Port Qasim Authority. The petitioner received the following show cause notices all dated 13.05.2011 from the respondent No.3 calling upon the petitioner to show cause as to why the amount of Sales Tax mentioned therein along with default surcharge should not be recovered from the petitioner under Sections 11, 34, 36(1) of the Sales Tax Act, 1990, besides penal action against the petitioner under Section 33 of the said Act :-
|
Const. Petition No. |
Period |
Amount in Rs. |
|
C.P No. D-1707 / 2012 |
July 2005 to June 2006 |
93,722,718.00 |
|
C.P No. D-1708 / 2012 |
July 2006 to June 2007 |
92,610,548.00 |
|
C.P No. D-1709 / 2012 |
July 2007 to June 2008 |
118,264,843.00 |
|
C.P No. D-1710 / 2012 |
July 2008 to June 2009 |
153,420,330.00 |
|
C.P No. D-1711 / 2012 |
July 2009 to June 2010 |
151,814,336.00 |
3. Hearings in respect of the above mentioned show cause notices took place wherein the petitioner strongly opposed the said show cause notices. However by the following Orders in Original passed by the Deputy Commissioner, IR-II (Zone-II), Large Taxpayers' Unit, Federal Board of Revenue, Karachi, petitioner's objections were rejected and the petitioner was directed to pay the following amounts along with default surcharge :-
|
Const. Petition No. |
Number of Order in Original and Date
|
Amount |
|
C.P No. D-1707 / 2012 |
05/2011 – 25.05.2011 |
Rs. 45,000,000.00 |
|
C.P No. D-1708 / 2012 |
04/2011 – 25.05.2011 |
Rs. 45,000,000.00 |
|
C.P No. D-1709 / 2012 |
03/2011 – 25.05.2011 |
Rs. 58,500,000.00 |
|
C.P No. D-1710 / 2012 |
02/2011 – 16.05.2011 |
Rs.153,420,330.00 |
|
C.P No. D-1711 / 2012 |
01/2011 – 16.05.2011 |
Rs.160,664,831.00 |
4. Against all the above mentioned Orders in Original, the petitioner filed separate First Appeals before the Commissioner Inland Revenue (Appeal-I). The petitioner also filed applications in all the said appeals for stay of demands which were allowed subject to deposit of 50% of the impugned demands. Being still aggrieved, the said stay orders were challenged by the petitioner before the Appellate Tribunal Inland Revenue (Pakistan) Karachi, who by orders dated 02.07.2011, modified the stay orders by reducing the amounts to be deposited by the petitioner from 50% to 25%. In compliance of the orders of the Appellate Tribunal, 25% amounts of the impugned demands was duly deposited by the petitioner.
5. By separate orders dated 20.08.2011 passed in the appeals filed by the petitioner, the Commissioner Inland Revenue rejected the appeals filed by the petitioner and upheld the Orders in Original. All the said orders were then challenged by the petitioner by filing separate appeals before the Appellate Tribunal Inland Revenue, Karachi. In the said appeals, the petitioner also filed stay applications for grant of stay of the impugned demands and default surcharge till the decision by the Appellate Tribunal of petitioner's appeals against the Orders in Original. By orders dated 12.10.2011 passed on petitioner's stay applications, stay was granted to the petitioner by the Appellate Tribunal.
6. In the meantime, all the appeals filed by the petitioner were heard at length by the Appellate Tribunal and were then reserved for final order on 12.02.2012. Thereafter the petitioner received recovery notices dated 26.04.2012, 02.05.2012 and 03.05.2012 from respondent No.3, namely, Deputy Commissioner Inland Revenue, calling upon the petitioner to pay the principal amounts of sales tax and default surcharge thereon as specified in the said recovery notices. The said recovery notices were responded to by the petitioner, but the respondents kept on pressing the petitioner to deposit the impugned demands on the grounds that the interim stay order granted by the Appellate Tribunal has expired under Article 199(4-A) of the Constitution of Pakistan, and that the Hon'ble Chief Justice of Pakistan while addressing the session of International Judicial Conference was pleased to observe that since the interim order ceases to have effect on expiration of a period of six months from the date of passing of the order, the concerned authorities will be within their rights, after passage of six months, to seek enforcement of the judgment / order against which any such interim order is passed. The above mentioned recovery notices have been impugned in these petitions with the prayer that the same may be declared to be completely without jurisdiction, void-ab-initio and of no legal effect, and that the petitioner is not liable to pay the impugned demands.
7. Dr. Muhammad Farogh Naseem, learned counsel for the petitioner, contended that the appeals filed by the petitioner were finally heard and reserved by the Appellate Tribunal on 12.02.2012 and since then the same are at the stage of announcement of orders. He contended that the petitioner is not responsible for the delay caused in passing and announcement of orders by the Appellate Tribunal, as the petitioner never tried to delay the proceedings before the Appellate Tribunal. According to the learned counsel the petitioner not only fulfilled its duty by concluding hearing of the appeals diligently before the Appellate Tribunal on 12.02.2012, but has also deposited 25% amount of the impugned demands as directed by the Appellate Tribunal. He specifically invited our attention to the stay granted by the Appellate Tribunal on 12.10.2011 on the applications filed by the petitioner wherein the petitioner had prayed that the impugned demands and default surcharge thereon should be stayed till decision of appeals by the Appellate Tribunal. The learned counsel also submitted that the petitioner cannot be held responsible in any manner for the delay in passing and announcing of orders by the Appellate Tribunal. He very strongly asserted that all the impugned recovery notices are malafide, uncalled for and absolutely unjustified in view of his above submissions. In support of his submissions, Dr. Muhammad Farogh Naseem cited and relied upon the following reported cases :-
(i) 2006 PTD 2207 (Division Bench – Sindh High Court)
Karachi Shipyard and Engineering Works Ltd. Karachi V/S Additional Collector, Customs, Excise & Sales Tax
(Adjudication-III), Govt. of Pakistan, Karachi, & 2 others.
(ii) 2002 PTD 403 (Division Bench – Sindh High Court)
Messers EVICRETE Limited through Chairman V/S Customs Central Excise and Sales Tax Appellate Tribunal (Karachi Bench) and others.
(iii) 2009 PTD1828 (Single Bench – Lahore High Court)
SS Talleries through proprietor V/S Assistant Collector (Audit and Enforcement Division-II), Lahore and 2 others.
(iv) 2002 PTD1616 (Single Bench – Lahore High Court)
Adeel Hosiery Dyeing through proprietor Muhammad Rasheed, Faisalabad V/S Assistant Collector, Collectorate of Sales Tax, Faislalabad and another.
(v) 2006 PTD 332 (Single Bench – Lahore High Court)
Messers Wak Ltd. through Chief Executive V/S Federation of Pakistan through Ministry of Finance, Islamabad and 5 others.
(vi) 2006 PTD2721 (Single Bench – Lahore High Court)
SS Talleries through proprietor V/S Assistant Collector (Audit and Enforcement Division-II), Sales Tax and Federal Excise and 2 others.
(vii) 2006 PTD 535 (Single Bench – Lahore High Court)
Sun-Rise Bottling Company (Pvt.) Ltd. through Chief Executive V/S Federation of Pakistan and 4 others.
(viii) 2005 PTD1368 (Single Bench – Lahore High Court)
Messers Pearl Continental Hotel, Lahore through Director Finance and an other V/S Customs, Excise and Sales Tax Appellate Tribunal, Lahore and another.
(ix) 2003 PTD 1746 (Single Bench – Lahore High Court)
Z N Exporters (Pvt.) Ltd. V/S Collector of Sales Tax.
(x) 2009 PTD 1220 (Single Bench – Lahore High Court)
Messers Dawood Textile Printing Industries (Pvt.) Ltd. Faisalabad through Chief Executive V/S Federation of Pakistan through Secretary, Revenue Division, FBR and 4 others.
8. Facts of all the above mentioned cases cited and relied upon by Dr. Muhammad Farogh Naseem and the principles laid down therein are almost common. In all the said cases, appeals before the Appellate Tribunal were either pending or were lying reserved for orders, and interim orders staying the impugned demands were operating in the said appeals. Despite such interim stay orders, the concerned authorities had issued recovery / demand notices on the ground that interim orders passed by the Appellate Tribunal stood vacated upon expiration of six months. All such impugned demands were challenged by the assesses in the constitutional jurisdiction of this Court and Lahore High Court in the above mentioned cases, wherein more or less similar orders were passed by holding inter alia :
· Where appeal was pending and could not be taken up for hearing because of non-availability of Member in the Tribunal, the Department would not take any adverse action against the assesse on the basis of impugned order and recovery notice till appeal of the assesse was taken up for hearing by the Tribunal;
· Where the Appellate Tribunal grants interim relief, it is incumbent upon the Tribunal to dispose of that appeal within statutory period of six months in order to safeguard the interest of both the assesse as well as the Revenue. The Appellate Tribunal was directed by the High Court to dispose of pending appeal of assesse at the earliest but not later than three months with the directions not to take coercive mode of recovery against the assesse ;
· During pendency of appeal and for effectiveness of right to maintain the appeal, the assesse was entitled to protection against coercive measures for effective dispensation of justice and law in absence of any efficacious remedy, and that the assesse could make an application before the Appellate Tribunal for early hearing of appeal. But in the meanwhile authorities were restrained by the High Court from adopting any coercive measure against the assesse for recovery of the amount under appeal ;
· Access to justice was fundamental right and essential feature of such right was determination of any grievance or dispute by an independent tribunal. Grievance of the assesse was that the authorities were not entitled to recover the tax liability on account of the fact that interim injunction already granted by the Appellate Tribunal had expired with lapse of six months pursuant to Section 46(4) of the Sales Tax Act, 1990. By allowing the petition, High Court directed the authorities not to press for recovery of dues from the assesse, and also directed the Appellate Tribunal to endeavour for deciding the appeal of the assesse within a period of three months, and during such period authorities were restrained from pressing order for recovery of disputed dues through coercive measures ;
· Appeal filed by the assesse had already been heard by the Tribunal, but the judgment was awaited and despite the fact that the Tribunal had reserved its judgment, the Revenue was bent upon enforcing the recovery which was the subject matter of appeal before the Tribunal. High Court allowed the prayer for interim relief till the decision of the appeal by the Tribunal and directed the Tribunal to decide the appeal within fifteen days. It was further ordered that till the decision of the appeal no coercive modes of recovery shall be enforced against the assesse, and in case any order enforcing the recovery had already been issued, the same shall forthwith cease to have effect for the aforesaid period ; and
· Appellate Tribunal stayed recovery of amounts impugned in appeal by the assesse, which interim order ceased to remain effective after expiration of six months. The Tribunal was not in a position to extend the same because of the express provisions of Section 46(3) of the Sales Tax Act, 1990. Therefore, remedy before Appellate Tribunal was no longer available to the assesse so far as interim relief was concerned. High Court accepted constitutional petition and stayed recovery of amounts during pendency of assesses' appeal before the Appellate Tribunal subject to provisions of Article 199 of the Constitution.
9. Learned counsel for the petitioner further submitted that the above referred speech of the Hon'ble Chief Justice of Pakistan cannot be made the basis or ground for issuing recovery notices to the petitioner. In this context, he relied upon the case of the State V/S Sir Edward Snelson K.B.E., Secretary to Government of Pakistan, Ministry of Law, decided by a learned Full Bench and reported as PLD 1961 (W.P.) Lahore 78. It was held in the aforesaid case by the learned Full Bench as under :-
"Again, when Mr. Ghias Mohammad wanted to refer to a speech made by an ex-Chief Justice of Pakistan and to two made by the present Chief Justice of West Pakistan, I pointed out to him that as those speeches had not been the subject of decision by any Court, a reference to them was entirely irrelevant for the present proceedings, and he came out with a reply that he had been instructed by the Central Government to refer to those speeches during the course of his arguments."
('E', paragraph 9 at page 91).
We may point out here that the decision of the aforementioned Full Bench case relied upon by Dr. Muhammad Farogh Naseem was upheld by a larger bench of the Hon’ble Supreme Court comprising of five Hon'ble judges in the cases of (1) Sir Edward Snelson K.B.E., Secretary to Government of Pakistan, Ministry of Law V/S the Judges of the High Court of West Pakistan, Lahore, and the Central Government of Pakistan, and (2) The Government of Pakistan V/S the Judges of the High Court of West Pakistan, Lahore, and Sir Edward Snelson K.B.E., Secretary to Government of Pakistan, Ministry of Law, reported as PLD 1961 Supreme Court 237.
10. In reply to the above submissions made on behalf of the petitioner, Mr. Siddique Mirza, learned counsel for respondents 2 and 3, defended the impugned recovery notices by emphasizing on Clause (4-A) of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. According to him, the above referred Clause (4-A) of Article 199 specifically provides that an interim order passed on an application to question the validity or legal effect of any order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been made, taken or done under any law, or is connected with state property or assessment or collection of public revenues, ceases to have effect upon expiration of a period of six months from the date of such order. Learned counsel also submitted that because of the word "shall" used in this Clause (4-A), the provisions thereof are mandatory in nature. Mr. Mirza contended that, since the recovery notices have been issued to the petitioner admittedly after more than six months of passing of the interim stay order by the Appellate Tribunal, respondents 2 and 3 were fully justified in issuing such notices to the petitioner. He prayed for dismissal of all these petitions by asserting that the petitioners are liable to pay the impugned demands. In support of his contentions, Mr. Mirza relied upon the following reported cases :
(i) PLD 1977 SC 397 (Larger Bench of five Hon'ble Judges)
Federation of Pakistan through the Secretary, Ministry of Finance, Government of Pakistan, Islamabad, ETC. V/S United Sugar Mills Ltd. Karachi.
Learned counsel for respondents 2 and 3 specifically relied upon the portion marked as 'C' at pages 406 and 407 of the above referred authority, wherein it was held that the underlying intendment of inserting Clause (4-A) in Article 199 of the Constitution was to put an end to gross abuse of the process of the court by which enormous sums of money recoverable by the State as taxes are held in abeyance for indefinite period as a result of stay orders.
(ii) PLD 1999 SC 880 (Full Bench)
Zahur Textile Mills Ltd. V/S Federation of Pakistan and others.
In the above referred authority also, it was held that interim orders passed by a High Court stand expired on expiration of six months by operation of the Constitutional provision.
11. In his rebuttal, Dr. Muhammad Farogh Naseem submitted at the very outset that the above authorities cited by the learned counsel for respondents 2 and 3 are not applicable in these petitions for the simple reason that Clause (4-A) of Article 199 is applicable only to an interim order passed by a High Court and not by any other court, tribunal or other forum. He further submitted that interim stay orders in these matters were passed in favour of the petitioner by the Appellate Tribunal and not by a High Court, therefore, reliance on Clause (4-A) by respondents 2 and 3 is misconceived and unjustified. In view of the above submissions, the impugned recovery notices are misconceived, baseless, and of no legal effect according to the learned counsel.
12. Dr. Muhammad Farogh Naseem further submitted without prejudice and in addition to his above submissions, that the petitioner challenges the contention of the respondents that an interim injunction order ceases to have effect after expiration of six months from the date of such order. Learned counsel submitted that through the seventeenth amendment in the Constitution of the Islamic Republic of Pakistan, 1973, several new provisions were introduced, and by one of such new provisions, the clog on the power of the High Court not to pass an interim order for a period of more than six months was removed. In support of this submission, he relied upon the case of a larger bench comprising of five Hon'ble Judges of the Supreme Court of Pakistan, namely, Pakistan Lawyers Forum and others V/S Federation of Pakistan and others, reported as PLD 2005 Supreme Court 719 (relevant portion : paragraph 36 at pages 755 and 756).
13. From the facts on record and the submissions made before us, following admitted position has emerged :-
All the appeals filed by the petitioner were heard and reserved for orders by the Appellate Tribunal on 12.02.2012 ;
Final order / decision had not been announced by the Appellate Tribunal till the issuance of the impugned recovery notices ;
Stay was granted by the Appellate Tribunal on applications filed by the petitioner containing specific prayer that the impugned demands and the amounts of default surcharge thereon may be stayed till decision of petitioner's appeals before the Appellate Tribunal ;
Stay granted by the Appellate Tribunal on petitioner's applications was in the field when the appeals were heard and reserved, and was still operating when the impugned recovery notices were issued ;
The said stay orders were not varied, modified, recalled or vacated by the Appellate Tribunal till the time when the appeals were heard and reserved, or till the time when the impugned recovery notices were issued ; and
The petitioner had deposited 25% amount of the impugned demands, which was the prerequisite for grant of the first stay order.
14. In view of the above mentioned admitted position and the law cited by Dr. Muhammad Farogh Naseem, we are inclined to agree with him that the authorities should have refrained themselves from issuing the impugned recovery notices especially when they were fully aware of the above mentioned admitted position. After examining all the three recovery notices impugned in these petitions, we have observed the following with grave concern :
(i) Recovery notices dated 26.04.2012 : In this impugned notice, the respondent No.3 had mentioned / admitted that stay was granted to the petitioner till the decision of its appeals. Yet the respondent No.3 Deputy Commissioner Inland Revenue, who is subordinate to the Appellate Tribunal, stated in this impugned notice that the Appellate Tribunal can provide stay for a maximum period of six months and lapse thereof can entail recovery proceedings.
(ii) Recovery notices dated 02.05.2012 : In this second impugned notice,the respondent No.3 Deputy Commissioner Inland Revenue / subordinate authority once again asserted that the stay granted by the higher authority / the Appellate Tribunal on 12.10.2011 had expired on 12.04.2012 after passage of six months.
(iii) Recovery notices dated 03.05.2012 : This third impugned notice was issued by the respondent No.3 Deputy Commissioner Inland Revenue / subordinate authority in an evasive manner without referring to petitioner's appeals heard and reserved by the higher authority / Appellate Tribunal and the stay granted therein to the petitioner.
15. We appreciate that different revenue authorities have been established under special laws in order to expedite recovery of outstanding or defaulted amounts. It is indeed the jurisdiction, function and power of such authorities to exercise their respective jurisdiction, functions and powers, but such exercise must be undertaken by the authorities cautiously, within their limits and strictly in accordance with law. In these matters, we have noted with concern that the authorities have exceeded their jurisdiction, power and authority by evaluating and interpreting the stay granted by an authority higher to them, namely, the Appellate Tribunal. The purpose of establishing revenue collecting authorities is for the betterment of the society in order to improve the economic growth of our country through recovery by due process of law, and not to pressurize, harass or suffocate taxpayers / assesses who are doing businesses and paying taxes to improve the dilapidating economy of our country. The authorities must not indulge into such aggressive practice, as has been done in these cases, by coercing taxpayers / assesses and by unnecessarily referring to speeches of Hon'ble judges of superior courts. Such irresponsible conduct on the part of the authorities is bound to create chaos in our country and may also cause embarrassment to our superior courts and to their Hon'ble judges.
16. We are of the clear opinion that the respondents had no power, authority or jurisdiction to evaluate the validity of the stay order which was granted by their higher authority, namely, the Appellate Tribunal. In this context, we would like to refer to a Full Bench case of the Hon’ble Supreme Court reported as 1999 PTD 1892, Attock Cement Pakistan Ltd. V/S Collector of Customs, Collectorate of Customs and Central Excise, Quetta and 4 others, wherein it was held that where the action involves fiscal rights on the allegations of misapplication of law or abuse of power, the Superior Court can step in to examine whether or not the public functionary concerned acted in accordance with the power conferred on him by the statue. We, therefore, hold that all the impugned recovery notices are without jurisdiction and of no legal effect.
17. It is a well established principle of law that relief granted by a court should be examined and interpreted in the context of the prayer made by the applicant. In these cases, petitioner's prayer in the stay applications was as under :-
" In the afore-said circumstances, the applicant requests the Honourable Tribunal for grant of stay of entire demand of …….. million along with the amount of default surcharge [as to be calculated till the date of final payment] in respect of the tax periods from ………….. till decision of Hon'ble Appellate Tribunal in the appeal filed by the appellant against the Order-In-Appeal. "
Following order was passed by the Appellate Tribunal on 12.10.2011 on petitioner's stay applications containing the above quoted prayers :-
" Stay granted. Let the case be fixed for 22.10.2011 before an appropriate bench. "
The above order granting stay to the petitioner was passed without any condition, and it was not mentioned therein that the said stay was being granted till the next date of hearing or till a particular date. We have already observed above that admittedly the stay order had not been not varied, modified, recalled or vacated by the Appellate Tribunal till the time when the appeals were heard and reserved, or till the time when the impugned recovery notices were issued. It is, therefore, held that the stay was granted by the Appellate Tribunal till decision of petitioner's appeals and that there was no justification of issuing impugned recovery notices by the respondents to the petitioner before decision of appeals by the Appellate Tribunal or seeking recall of the stay order from the Tribunal.
18. With respect to the learned counsel for the respondents, we are unable to convince ourselves to agree with him that by virtue of Clause (4-A) of Article 199 of the Constitution, the stay granted to the petitioner stood vacated upon expiration of six months. In our opinion, the language of the said Clause (4-A) is clear and unambiguous which can be ascertained even by a bare reading as the words "An interim order made by a High Court " have been specifically used therein. The words "High Court" would not have been used in the said Clause (4-A) by the law makers if this Clause was to be applied also in respect of orders passed by any other forum, tribunal or subordinate court other than a High Court. Our above view is fortified by the decision of a learned Division Bench of this Court in the case of Messers EVICRETE Limited through Chairman V/S Customs Central Excise and Sales Tax Appellate Tribunal (Karachi Bench) and others, 2002 PTD 403, wherein it was held by the learned Division Bench of this Court that Constitutional provision contained in Article 199(4-A) is only attracted when an interim order is passed by the High Court in its jurisdiction under Article 199 inter alia in revenue matters and has no application to the interim orders by any other forum. While rejecting this objection raised by the respondents, we follow the judgment delivered by the learned Division Bench of this Court in 2002 PTD 403 (supra) and hold that the provision contained in Article 199(4-A) is only attracted when an interim order is passed by the High Court in its jurisdiction under Article 199 inter alia in revenue matters, and that Article 199(4-A) of the Constitution of the Islamic Republic of Pakistan, 1973, has no application to the interim orders by any other forum.
19. In view of the above discussion, all these five petitions are allowed and the three recovery notices impugned herein are declared as without jurisdiction and of no legal effect. The Appellate Tribunal shall decide all these cases expeditiously as per the directions contained in the short order announced by us on 28.05.2012.
JUDGE
JUDGE.
*CP D-1707&-12 Judgment/ARK/D/07-6-12