Interim/interlocutory orders of the Appellate Tribunal---Constitutional jurisdiction of High Court-

Citation Name : 2019 PTD 2228 PESHAWAR-HIGH-COURT
Side Appellant : COMMISSIONER INLAND REVENUE
Side Opponent : PESHAWAR ELECTRICITY SUPPLY COMPANY LTD. (PESCO)
Ss. 47 & 46---Constitution of Pakistan, Art. 199---Jurisdiction of High Court under S. 47 of the Sales TAX Act, 1990---Nature---Question of law---Interim/interlocutory orders of the Appellate Tribunal---Constitutional jurisdiction of High Court---Scope---Department impugned order of Appellate Tribunal where interim relief was allowed to TAX payer and claimed that the same constituted a question of law for the purpose of adjudication under S.47 of Sales TAX Act, 1990---Validity---Appellate Tribunal, in the present case, had not decided any legal issue which would invoke jurisdiction under S.47 of the Sales TAX Act, 1990---High Court converted present reference under S.47 of the Sales TAX Act, 1990 into a Constitutional petition and held that Appellate Tribunal could not grant an indefinite stay in a sales TAX matter---High Court directed the Appellate Tribunal to decide the matter within 30 days---Constitutional petition was allowed, accordingly.

Citation Name : 2019 PTD 1652 PESHAWAR-HIGH-COURT
Side Appellant : ABID FOUNDRY
Side Opponent : PAKISTAN through Federal Secretary, Finance and Revenue Division, Islamabad
Ss. 53, 159 & Second Sched.---Constitution of Pakistan, Art. 246---S.R.O. No. 1213(I)/2018 dated 05.10.2018---SRO No. 887(I)/2018, 23.07.2018---Merger of Federally Administered Tribal Areas (FATA) into Province of Khyber Pakhtunkhwa (KPK)---TAX exemption provided to residents of said area by Federal Government for a period of five years---Exemption from payment of TAX and exemption from applicability of TAX ---Distinction---Deduction of withholding TAX es and advance TAX on utility bills for residents of former FATA---Requirement of TAX Exemption Certificate---Scope---Petitioners, which were industrial units operating in erstwhile FATA impugned demands for payment of sales TAX and income TAX as well as deduction of withholding and advance TAX on electricity bills and other utilities---Question before High Court was related to interpretation exemption from payment of TAX and exemption from certain provisions of TAX , provided to individuals, association of persons and companies, located in erstwhile FATA as defined by Art. 246 of the Constitution and such exemptions, inter alia, were provided by S.R.O. No. 1213(I)/2018 dated 05.10.2018 and S.R.O. No. 887(I)/2018, 23.07.2018---Held, that after amendment in the Constitution immunity from TAX es allowed to inhabitants of erstwhile FATA no longer existed, however Federal Government decided to continue concession to resident of said area in shape of exemption from all TAX es for period of five years which were granted by issuing SROs---Such exemptions was not simple exemptions regulated under S. 53(1) of Income TAX Ordinance, 2001, rather Federal Government intended to keep the situation as it existed prior to the Constitutional amendment---Section 53(2) of Income TAX Ordinance, 2001 not only empowered Federal Board of Revenue to exempt any class or classes of persons from payment of TAX , but also empowered Federal Government to exempt any person from the operation of any provision of Income TAX Ordinance, 2001---Petitioners, in the present case, had not been exempted from TAX payable under but rather been exempted from applicability of such provisions---Exemption from payment of TAX was a concession while exemption from applicability of provision of Income TAX Ordinance, 2001 was absolute immunity---TAX payer, in case of exemption, required an Exemption Certificate under S.159 Income TAX Ordinance, 2001 while in case of immunity from provision of Income TAX Ordinance, 2001, it shall be deemed that Income TAX Ordinance, 2001 was not applicable to TAX payer---Deduction or collection of withholding TAX , which were not applicable prior to Constitutional amendment would therefore not apply to residents of former FATA under the said SROs---High Court held that petitioners were not liable to pay any TAX which was not applicable prior to Constitutional amendment and collection of advance TAX on the amount of electricity bills of industrial units of petitioners was declared illegal---High Court further held that petitioners were not required to obtain any Exemption Certificate as contemplated under S. 159 of the Income TAX Ordinance, 2001---Constitutional petitions were disposed of accordingly.

Citation Name : 2019 PTD 1595 PESHAWAR-HIGH-COURT
Side Appellant : MUHAMMAD SALAM
Side Opponent : State
S. 19---Criminal Procedure Code (V of 1898), S. 516A---Government of Khyber Pakhtunkhwa Home and Tribunal Affairs Department, Circular No. SO(AR)HD1-8/NCP/2014/KC dated 3.10.2014---General power of exemption from customs duty---Non-customs paid vehicle---Release of such vehicle on superdari---Scope---Petitioners sought release of their vehicles on superdari which were seized by police, being non-customs paid---Petitioners contended that Provincial Government had approved a policy for use of non-customs paid vehicles in order to facilitate temporary dislocated persons of North Waziristan---Validity---Notification regarding exemption of any goods imported into Pakistan could only be issued by Federal Government under S. 19, Customs Act, 1969---Admittedly, vehicles in question were neither brought into settled area in accordance with the provisions contained in the Customs Act, 1969, nor customs duty or TAX es leviable thereon were paid by its importers---No Court including the High Court had the power to release such vehicles on superdari---Vehicles were subject to departmental adjudication as envisaged under the Customs Act, 1969---Quashment Petitions were dismissed, in circumstances.