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-Submission of Bank guarantee- - Lawyers of Pakistan

-Submission of Bank guarantee-

Citation Name : 2019 PLD 645 SUPREME-COURT
Side Appellant : HUMAN RIGHTS CASE NO.18877 OF 2018
Side Opponent :
Ss. 2(63), 2(66), 147, 168 & 236---Federal Excise Act (VII of 2005), S. 3 & First Sched. Table II, Sr. No. 6 --- Punjab Sales TAX on Services Act (XLII of 2012), Ss. 1(4), 2(38) & 3 & First Sched. Classification No. 9812.1210---Sindh Sales TAX on Services Act (XII of 2011), Ss. 2(97), 3 & 8 & Second Sched. Tariff heading No.9812.1210---Khyber Pakhtunkhwa Finance Act (XXI of 2013), Ss.2(48) & 19 & Sched. II, Serial Nos. 4(5) & 4(9)---Balochistan Sales TAX on Services Act (VI of 2015), Ss. 2(39) & 3 & First Sched. Classification No.98.12.1000---Constitution of Pakistan, Arts. 4(2)(a), 23, 24 & 184(3) & Pt. II, Chapt.1---Human rights case regarding deduction of TAX es and other charges by mobile companies in Pakistan---Levy/imposition of advance income TAX , Federal excise duty, sales TAX on services and service/maintenance charges---Constitutionality and legality---Question as to whether the Supreme Court under Art.184(3) of the Constitution had the jurisdiction to determine the validity of the imposition and collection of TAX es---[Per Qazi Faez Isa, J (Majority view): Only once the TAX es imposed on customers of cellular companies by the Income TAX Ordinance, 2001, the Federal Excise Act, 2005, the Punjab Sales TAX on Services Act, 2012, the Sindh Sales TAX on Services Act, 2011, the Khyber Pakhtunkhwa Finance Act, 2013, and the Balochistan Sales TAX on Services Act, 2015, were declared contrary to the Constitution and struck down could their imposition and collection from subscribers/customers of cellular telecom companies be stopped---None of the said statutes, which had imposed the TAX es, had been declared by a competent Court to be beyond the legislative competence of the legislature which had imposed them nor had it been declared that they contravened any constitutional provision---In exercise of power under Art.184(3) of the Constitution the Supreme Court may pass appropriate orders for the enforcement of Fundamental Rights---Said Fundamental Rights were those conferred by Chap. 1 of Part II of the Constitution; protection from TAX ation was not listed as one of these Fundamental Rights---TAX es could not be presumed to be against the public interest since TAX es were spent for the benefit of the public---Supreme Court was generally slow in entertaining challenges to TAX es which were imposed by the appropriate legislature in apparent conformity with the provisions of the Constitution---Interim order of the Supreme Court whereby the recovery of TAX es by cellular companies was suspended did not record reasons nor did it determine that the imposition of the TAX es was without jurisdiction---Supreme Court directed that the recovery of the TAX es in question may be resumed by the cellular telecom companies, however, they were not allowed to impose any service/maintenance charge thereon as they had elected not to impose these charges, and that it would be unfair and unjust to demand that the cellular telecom companies make good the loss of the TAX es that could not be recovered for the period during which their recovery was suspended by an interim order of the Supreme Court---Human rights case was disposed of accordingly---[Per Ijaz ul Ahsan, J dissenting (Minority view)]: Framers of the Constitution, had intentionally, deliberately and by conscious design placed no restriction on the types of fundamental rights for enforcement of which powers under Art.184(3) of the Constitution could and could not be exercised---As long as a matter met the two conditions, in that, it involved a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chap. I of Part II of the Constitution, it was immaterial whether the violation related to a fiscal matter, TAX ation, a matter involving property rights, personal freedoms or human liberties, the Supreme Court could and should exercise its powers to come to the rescue of the citizen whose rights may be at risk of being bulldozed, destroyed or encroached upon by the State with all the might and resources available to it---With a population of over 200 million out of which the number of cellular subscribers was approximately 150 million (in mid of the year 2018), there could be no two opinions that the present matter regarding imposition of TAX es on, inter alia, topping up of mobile phone balance, affected and had repercussions on the public at large and was not an individual or private grievance---Issue in the present matter was that of alleged unLAW ful extraction of money in the form of advance TAX under S.236 of the Income TAX Ordinance, 2001 from millions of cellular subscribers who did not fall within the relevant TAX bracket for the purposes of the said Ordinance---Money being taken from cellular subscribers constituted 'property' as envisaged by Arts. 23 & 24 of the Constitution, therefore, the contention that the present matter did not involve the enforcement of any Fundamental Rights was incorrect---Apart from the Fundamental Rights contained in Chapter I of Part II of the Constitution, the deduction and collection of such advance TAX was also seemingly a clear contravention of Art. 4(2)(a) of the Constitution---Contention that the Supreme Court did not have jurisdiction under Art. 184(3) of the Constitution to determine the validity of the imposition and collection of TAX es which had been imposed pursuant to statutes passed by competent legislatures under the Constitution, was misconceived---While dealing with a matter under Art.184(3) of the Constitution, the Supreme Court was neither bound by the procedural trappings nor limitations of Art.199 of the Constitution, hence, the interim order of the Supreme Court whereby recovery of the TAX es in question by the cellular telecom companies was suspended, was neither without jurisdiction, nor did it suffer from any legal, procedural or jurisdictional error, defect, fLAW or infirmity whatsoever.


Citation Name : 2019 PLD 297 SUPREME-COURT
Side Appellant : HUMAN RIGHTS CASE NO.69229-P OF 2018
Side Opponent :
Ss. 3, 42, 42-A & 56(2)---Transfer of Property Act (IV of 1882), Ss.54, 59, 107, 118 & 123---Registration Act (XVI of 1908), S. 17---Punjab Urban Immovable Property TAX Act (V of 1958), S. 3---Punjab Local Government Act (XVIII of 2013), Ss. 2(hhh) & 6(2)---Human rights case---Matter regarding functioning of Patwaris, Kanungos and Tehsildars in urban areas of cities---Land/estate located within "rating areas" of the Punjab Urban Immoveable Property TAX Act, 1958, was exempted from the payment of land revenue and the revenue authorities---Patwaries, Kanungos, Tehsildars etc., were not authorized to enter mutations of alienation of such property etc., in their record---Revenue authorities were to refrain from any and all functions (to the extent that these were within the ambit of the (Punjab Urban Immoveable Property TAX Act, 1958) in the said areas particularly with regards to entering mutations, etc.---Supreme Court directed that all the urban areas to which the Punjab Land Revenue Act, 1967 did not apply shall be governed by the Transfer of Property Act, 1882 and the Registration Act, 1908 for the purposes of transfer of property or devolution of any rights in property; that no oral mutations for the purposes of the transfer of property shall be valid in LAW in such urban areas (which had become part of settled areas including municipalities, towns, etc.); that the patwaarkhanas or revenue records could only be maintained for record keeping and not for the transfer of property under any of the modes recognized by the Transfer of Property Act, 1882 or any other LAW prevalent at the time; and, that since the revenue authorities of the Province of Khyber Pakhtunkhwa (KPK) were already compliant with the said directions, the findings and directions of the present case shall also apply to the Provinces of Sindh and Balochistan as well as that of the Federal Capital.


Citation Name : 2019 PTD 1712 QUETTA-HIGH-COURT-BALOCHISTAN
Side Appellant : The COLLECTOR OF CUSTOMS, MODEL CUSTOMS COLLECTORATE, QUETTA
Side Opponent : AL-HABIB ENTERPRISES AND ENGINEERING
Ss. 196, 193, 80 & 83---Reference to High Court---Appeal to Collector (Appeals)---Assessment and clearance of goods---Scope---Respondent had imported concrete transit mixer trucks which were cleared after submission of relevant documents---Customs authorities, on inquiry, came to know that years of manufacture of trucks were mis-declared---Additional Collector of Customs (Adjudication) issued show-cause notice and imposed penalty---Appellate Tribunal, on appeal, set aside the order passed by Additional Collector of Customs (Adjudication)---Validity---Held; after assessment of leviable duty and TAX es under S. 80, Customs Act, 1969 and payment thereof and after clearing the vehicles under S. 83, Customs Act, 1969, the available remedy of filing appeal under S. 193, Customs Act, 1969 was not availed by the concerned officials of the Collectorate of Customs---Additional Collector of Customs (Adjudication) had no jurisdiction under the provisions of the Customs Act, 1969 to issue show-cause notice and to pass order-in-original---No question of LAW having arisen out of the impugned judgments passed by Appellate Tribunal warranting interference by High Court under S. 196, Customs Act, 1969---References were dismissed, in circumstances.


Citation Name : 2019 PTD 110 QUETTA-HIGH-COURT-BALOCHISTAN
Side Appellant : COLLECTOR OF CUSTOMS through Additional Collector Custom, MCC-Gwadar, Gaddani
Side Opponent : BYCO PETROLEUM PAKISTAN LTD.
Ss.19, 32(3), 79, 179 & 196---Sales TAX Act (VII of 1990), S.3(2)---Notification SRO No. 678(I)/2004 dated 07-08-2004---Import Policy Order, 2013, Para. 12(a)---Reference---Show-cause notice, issuance of---Temporary import for re-export---Submission of Bank guarantee---Scope---Tug boats were imported for offloading oil tankers and importer companies submitted corporate guarantees as same were to be re-exported---Customs authorities issued show-cause notices claiming that importer companies had violated provisions of Ss.32(3) & 79(1) of Customs Act, 1969---Appellate authority directed customs authorities to withdraw show cause notices and orders passed by Appellate authority was maintained by Customs Appellate Tribunal---Validity---Provisions of Import Policy Order, 2013 allowed temporary import-cum-re-export of goods mentioned therein---Goods Declaration clearly showed that tugs were imported temporarily with intention to re-export them---Importer company had submitted Bank guarantee to satisfaction of customs authorities in such behalf, therefore, it was not an import simplicitor---TAX and duties applicable on permanent import of goods could not be imposed on temporary-cum-re-export of goods---If customs authorities disputed exemption of duties upon tugs in question imported by company, remedy provided by Notification SRO No.678(I)/2004 dated 07-08-2004 was to be adopted but instead, show-cause notice were issued which was violation of Notification SRO No.678(I)/2004 dated 07-08-2004---Importer company intended to import tugs temporarily, therefore, Federal Board of Revenue permitted them to do so---Once competent authority had allowed respondents to import tugs temporarily with an undertaking to re-export them, then there was no occasion for customs authorities to issue show-cause notices---High Court declined to interfere in the matter as authorities had failed to point out any illegality or irregularity or jurisdictional defect in concurrent findings of LAW and fact of two forums below---Reference was dismissed in circumstances.


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 1219 PESHAWAR-HIGH-COURT
Side Appellant : COMMISSIONER INLAND REVENUE, ZONE-II, PESHAWAR
Side Opponent : PAKISTAN MINERAL WATER BOTTLING (PVT.) LIMITED, SWABI
Ss. 133, 122 & 120---Amendment of assessment---Show-cause notice to TAX payer---Reference to High Court---Jurisdiction of High Court under S. 133 of the Income TAX Ordinance, 2001---Scope---Grounds for amendment of assessment of TAX payer ---Addition of new ground / allegation for amendment of assessment at belated stage---Question before the High Court was whether an issue / ground for amendment of assessment of TAX payer, which had not been raised either in the show-cause notice, or before the assessing officer or Appellate Tribunal; could be referred to the High Court under S. 133 of the Income TAX Ordinance, 2001 as a question of LAW ---Held, that once show-cause notice was issued to TAX payer, and matter was decided on basis of ground(s) raised therein and subsequently if the said ground(s) fail before the Appellate Tribunal, then no new ground could be agitated / raised by Department to be a valid reason for amendment in assessment order, despite of the fact that same could be a ground for a show-cause notice---Department however, under S. 122 of the Income TAX Ordinance, 2001, was at liberty to issue a fresh show-cause notice on said ground but within prescribed period of limitation under S. 122 of the Income TAX Ordinance, 2001---Reference was answered, accordingly.


Citation Name : 2019 PTD 1219 PESHAWAR-HIGH-COURT
Side Appellant : COMMISSIONER INLAND REVENUE, ZONE-II, PESHAWAR
Side Opponent : PAKISTAN MINERAL WATER BOTTLING (PVT.) LIMITED, SWABI
Ss. 133 & 132---Reference to High Court---Jurisdiction of High Court under S. 133 of the Income TAX Ordinance, 2001---Questions of LAW -----Scope---Under S. 133 of the Income TAX Ordinance, 2001 High Court had jurisdiction to decide any question of LAW arising out of an order of the Appellate Tribunal even if such matter had not been argued or raised before the Appellate Tribunal ; provided that such question of LAW must be arising out of the order of the Appellate Tribunal.


Citation Name : 2019 PTD 509 PESHAWAR-HIGH-COURT
Side Appellant : AHMED ALI
Side Opponent : TEHSIL NAZIM, TEHSIL MUNICIPAL ADMINISTRATION, TEHSIL GHAZI, DISTRICT, HARIPUR
Ss. 25, 42 & Third Schedule, Part-III---Imposition of TAX es---Tehsil Municipal Administration, powers of---Petitioner was owner of stone crusher plant and was aggrieved of levy of TAX /fee by Tehsil Municipal Administration on transportation of sand and crushed stone---Validity---Business of petitioner was not regulated by any of the local government either under provisions of erstwhile North Western Frontier Province Local Government Ordinance, 2001 or Khyber Pakhtunkhwa Local Government Act, 2013---Petitioner placed on file, decision taken by Local Government Council regarding imposing of TAX by Tehsil Municipal Officer on mineral products which TAX was declared to be not in accordance with Third Schedule, Part-III of Khyber Pakhtunkhwa Local Government Act, 2013---When decision was taken regarding one district, then same was equally applicable to similar activities being carried out in another district---Activities being carried out by petitioner were at par regarding which decision had been taken earlier---High Court declared that Tehsil Council had no authority to levy any TAX /fee on production of stone, sand/bajri---High Court declared notification in question as without LAW ful authority---Constitutional Petition was allowed in circumstances.


Citation Name : 2019 CLC 298 PESHAWAR-HIGH-COURT
Side Appellant : AHMED ALI
Side Opponent : TEHSIL NAZIM, TEHSIL MUNICIPAL ADMINISTRATION, TEHSIL GHAZI, DISTRICT, HARIPUR
Ss. 25, 42 & Third Schedule, Part-III---Imposition of TAX es---Tehsil Municipal Administration, powers of---Petitioner was owner of stone crusher plant and was aggrieved of levy of TAX /fee by Tehsil Municipal Administration on transportation of sand and crushed stone---Validity---Business of petitioner was not regulated by any of the local government either under provisions of erstwhile North Western Frontier Province Local Government Ordinance, 2001 or Khyber Pakhtunkhwa Local Government Act, 2013---Petitioner placed on file, decision taken by Local Government Council regarding imposing of TAX by Tehsil Municipal Officer on mineral products which TAX was declared to be not in accordance with Third Schedule, Part-III of Khyber Pakhtunkhwa Local Government Act, 2013---When decision was taken regarding one district, then same was equally applicable to similar activities being carried out in another district---Activities being carried out by petitioner were at par regarding which decision had been taken earlier---High Court declared that Tehsil Council had no authority to levy any TAX /fee on production of stone, sand/bajri---High Court declared notification in question as without LAW ful authority---Constitutional Petition was allowed in circumstances.


Citation Name : 2019 PLD 729 LAHORE-HIGH-COURT-LAHORE
Side Appellant : NISHAT HOTEL AND PROPERTIES LIMITED
Side Opponent : The PROVINCE OF PUNJAB
Ss. 2(j), 3(1), 5(4), 8, 36(a), 36(b) & 36(c) [as amended by the Punjab Revenue Authority (Amendment) Act (III of 2016) and Punjab Revenue Authority (Second Amendment) Act (XL of 2016)]---Punjab Sales TAX on Services Act (XLII of 2012), Preamble---Punjab Revenue Authority ('Revenue Authority')---Absence of notification under S.3(1) of the Punjab Revenue Authority Act, 2012 ('the Act') for establishment of the Revenue Authority---Omissions, discrepancies and defects in the Punjab Revenue Authority Act, 2012 highlighted in the case reported as Institute of Architects, Pakistan (Lahore Chapter) v. Province of Punjab and others (PLD 2016 Lahore 321)---Validation of such omissions, discrepancies and defects through the Punjab Revenue Authority (Amendment) Act, 2016 (III of 2016) ['First Amendment Act'] and Punjab Revenue Authority (Second Amendment) Act, 2016 (XL of 2016) ['Second Amendment Act']---Vires of---Both the 'First Amendment Act' and 'Second Amendment Act' were made effective from 1st July 2012, however, retroactivity of the Revenue Authority was reiterated in S.36(c) of the Act to establish it by command of LAW , without issuance of notification under S. 3(1)---All actions taken by Chairperson, during the interregnum period were deemed, by fiction of LAW , to have been taken by the Revenue Authority and the sales TAX and other amounts levied, charged, collected or realized were validated under the Act---Legislative competence to promulgate the impugned First and Second Amendment Acts was not in question---Since the Provincial Legislature was competent to enact the impugned First and Second Amendment Acts, therefore, S.36(c) of the Act had cured the lacuna of non-issuance of notification for establishment of the Revenue Authority---Absence of consequent amendment in S. 3(1) of the Act and other provisions, shall not affect the validation, which was to be treated as silenced or impliedly repealed---Protection in form of validity of proceedings under S. 8 of the Act was available for future, only in presence of a bona fide defect in constitution of the Revenue Authority or a vacancy---Such protection could not be allowed to be misused by the Executive by keeping the defect or not filling the vacancy without a justifiable excuse---After the judgment in Institute of Architects, Pakistan (Lahore Chapter) v. Province of Punjab and others (PLD 2016 Lahore 321), charging and collection of TAX levied under the Punjab Sales TAX on Services Act 2012, from 1st July, 2012 till the date of judgment was required to be validated for public welfare and in the interest of society---Since composition and establishment of the charging and collecting Revenue Authority was declared illegal, therefore, to achieve the purpose of validation, all actions, including framing of rules, defective appointments and constitution of Revenue Authority was required to be validated as well---Single handed performance of functions by Chairperson on behalf of the Revenue Authority were validated, by invoking doctrine of fiction, under S.36(b) of the Act---Purpose in favour of society existed and there was no prohibition under the Constitution, to pass a retrospective LAW to validate such actions and decisions, hence the provisions of Ss.36(a) & 36(b) of the Act were held to have been enacted competently---Constitutional petitions challenging the vires of the impugned First and Second Amendments Acts were dismissed accordingly.

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