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Where a TAX payer is entitled to receive a sum of money from another either at LAW or in equity - Lawyers of Pakistan

Where a TAX payer is entitled to receive a sum of money from another either at LAW or in equity

Citation Name : 2019 PTD 1702 KARACHI-HIGH-COURT-SINDH
Side Appellant : IKRAM ULLAH
Side Opponent : FEDERATION OF PAKISTAN through Secretary (Revenue Division)/Chairman, Islamabad
Ss. 252 & 80---Import Policy Order, 2016---Public Notice No. 05/2014 (AW) dated 09.09.2014---Import of used vehicles---Classification of vehicles as "vans" and "cars"---Age of vehicle restriction at time of import, determination of---Scope---Petitioners impugned refusal of customs authorities to clear and release vehicles imported by petitioners, which had been deemed as too old to import under the applicable policy---Contention of customs authorities was that said vehicles fell under classification of "cars" and not "vans" , and since the same were more than three years old, therefore as per Import Policy Order, 2016, the same could not be imported---Contention of petitioners, inter alia, was that the Goods Declaration filed by them clearly stated that the said vehicles were "vans" upon which the age-restriction was five years instead of three years---Validity----Per Public Notice No. 05/2014 (AW) dated 09.09.2014, the barometer to be employed by Customs authorities to designate classification of imported vehicles was the export certificate with respect to particulars of such vehicles, wherein the only mandatory requirement prescribed with respect to particulars of a vehicle was the export certificate issued by the concerned authority of the exporting country---Record showed that said export certificates, in the present case, denoted the subject vehicles as "vans" and goods declaration also declared the same as "vans"---Such goods declarations had been accepted and processed by the customs authorities without any demure in the past and no case of mis-declaration had even been instituted---Detention of imported vehicles of the petitioners was not in consonance with LAW and High Court directed that same be release subject to payment of applicable TAX es---Constitutional petitions were allowed, accordingly.


Citation Name : 2019 PTD 1368 KARACHI-HIGH-COURT-SINDH
Side Appellant : Messrs ASIO AFRICAN CO. (PVT.) LTD.
Side Opponent : FEDERATION OF PAKISTAN
S. 148 & Second Sched., Cl. 72B---Constitution of Pakistan, Arts. 4, 18 & 25---SRO No. 717(I)/2014 dated 07.08.2014----Import of goods---Collection of advance TAX on import stage---Exemptions to industrial undertakings---Issuance of certificate of exemptions---Conditions imposed on issuance of certificate for exemptions---Reasonable basis and classification for such conditions---Constitutional test---Scope----Petitioners, who were importers of wheat, impugned SRO No. 717(I)/2014 dated 07.08.2014 whereby they were denied exemption from income TAX in terms of Cl. 72B of the Second Schedule to the Income TAX Ordinance, 2001---Contention of petitioners, inter alia, was that said SRO discriminated against them by granting exemption to only those importers who could show that they had imported and consumed slightly over and above the same raw material's quantity in the preceding year, and therefore, petitioners being new entrants in the market, could not be given said benefit---Validity----Petitioners, despite being new entrants in the market, were similarly placed to other importers and were in the same class of persons who had been in the business for at least the last one year---No reasonable classification therefore existed as both types of importers where importing the same product intended for the same purpose, chargeable with equal excise duty and sales TAX , but discriminatory treatment had been meted out to petitioners,---Petitioners had been placed in a disadvantageous position which was arbitrary and unreasonable---Impugned clause (v) of SRO No. 717(I)/2014 dated 07.08.2014 requiring grant of exemption to only those who had been in the business in the previous years, was therefore violative of principle of equal protection of LAW and Arts. 4, 18 & 25 of the Constitution and was declared to be illegal and ultra vires the LAW ----Constitutional petition was allowed, accordingly.


Citation Name : 2019 PTD 1030 KARACHI-HIGH-COURT-SINDH
Side Appellant : WATEEN TELECOM LTD.
Side Opponent : SINDH through The Secretary of Ministry of Finance Government of Sindh, Karachi
S. 28---Civil Procedure Code (V of 1908) O. XXXIX Rr. 1 & 2---Conduct of Audit proceedings under S. 28 of the Sindh Sales TAX on Services Act, 2011---Application for grant of interim injunction---Scope---Exercise of discretion of Deputy Commissioner to make selection of TAX payer for audit---Reasons for such selection to be furnished---Mandatory---Scope----TAX payer sought to restrain Department from proceeding on a notice for conduct of audit to TAX payer, inter alia, on the ground that the notice to the TAX payer did not contain any reasons for such selection---Validity----Conduct of audit under S. 28 Sindh Sales TAX on Services Act, 2011 must be on basis of return furnished by the TAX payer----Impugned notice did not disclose any reasons whatsoever and only stated that Deputy Commissioner was empowered under S. 28 Sindh Sales TAX on Services Act, 2011 to conduct audit of TAX payer, which observation did not amount to giving of reasons for selecting the TAX payer---Under Sindh Sales TAX on Services Act, 2011, Deputy Commissioner had to decide to conduct an audit, and said decision could not be made without forming an opinion as to what was to be seen and examined on the return furnished-----LAW mandated that the Deputy Commissioner had to examine the TAX return at least tentatively and then to make a decision based on certain reasons which pointed to some defect or lacuna in said returns or payment of TAX by TAX payer, which accordingly required conduct of audit-----Decision to conduct audit, without furnishing reasons for the same, was in fact no decision in the eye of LAW ---Discretion under S. 28 of the Sindh Sales TAX on Services Act, 2011 had to be exercised in a judicious manner and Deputy Commissioner while exercising powers under the same should not act arbitrarily, unreasonably and in complete disregard of the rules and regulations---High Court observed that an officer of the Department while exercising powers under S. 28 of the Sindh Sales TAX on Services Act, 2011 was mandatorily required to give reasons for selection for audit of a TAX payer after examining the TAX returns---Department was restrained from proceeding on impugned notices---Application for interim injunction was allowed, accordingly.


Citation Name : 2019 PTD 903 KARACHI-HIGH-COURT-SINDH
Side Appellant : AZEE SECURITIES (PVT.) LTD.
Side Opponent : FEDERATION OF PAKISTAN through Secretary of Finance, Revenue Division
Ss. 214C, 122 & 177---Selection and conduct of audit by Department under Income TAX Ordinance, 2001---Nature and scope---Audit within itself is not an adverse action and or order, particularly in a system where TAX return was to be filed by a TAX payer under self-assessment and was to be treated as an assessment under S.120 of the Income TAX Ordinance, 2001----Audit, if not permitted , would leave Department in no position to determine as to whether compliance as mandated in LAW had been made and whether there was any liability against a TAX payer---Conduct of an audit was not an inconvenience, if a TAX payer fulfilled its statutory duty by maintaining records under the Income TAX Ordinance, 2001---Mere issuance of audit notices was no adverse action within itself, as after conduct of audit it was not necessary that in each and every case a demand of extra TAX would be raised---Income TAX Ordinance, 2001 provided a complete mechanism for TAX payer in situations including but not limited to proceedings of amendment of assessment of return under S. 122(9) of the Income TAX Ordinance, 2001.


Citation Name : 2019 PTD 903 KARACHI-HIGH-COURT-SINDH
Side Appellant : AZEE SECURITIES (PVT.) LTD.
Side Opponent : FEDERATION OF PAKISTAN through Secretary of Finance, Revenue Division
Ss. 214C, 177 & 120---Civil Procedure Code (V of 1908) O. XXXIX Rr. 1 & 2---Federal Board of Revenue Audit Policy, 2017---Selection for audit---Disclosure of parameters for selection for audit---Application of S. 214C(1A) of the Income TAX Ordinance, 2001---Interim injunction against audit of TAX payer under Income TAX Ordinance, 2001---Scope---Plaintiff / TAX payers' sought interim injunction to restrain Department from proceeding any further on notices for audit issued to the plaintiffs under S. 214C of the Income TAX Ordinance, 2001 and in accordance with the Department's Audit Policy of 2017---Contention of plaintiffs / TAX payers, inter alia, was that the Department had not revealed the parameters for selection and that S. 214C(1A) was ultra vires the Constitution---Validity----Under S. 214C(1A), it was not mandatory for the Department to disclose and notify parameters for selection of cases for audit purposes---Plaintiffs were seeking interim injunction, however they were unable to make out prima facie case for the same as the contention of plaintiffs was a mere challenge to Constitutionally of a LAW validity enacted by the Legislature---Balance of convenience also did not lie in favour of the plaintiffs and irreparable loss/injury would be caused to the Department instead of the plaintiffs, as at the present moment, it was only the conduct of audit with which the plaintiffs were aggrieved of ---Any injunctive order in the nature of restraint and directing the defendant not to conduct audit, when the same is being done on the basis of a provision which for the time being is validly existing, would cause irreparable loss to the exchequer---Conduct of audit was not an adverse action or order, hence no irreparable loss would be caused to plaintiffs---No such relief could be granted at such stage of the proceedings whereby the LAW itself could be suspended by Court---Applications under O. XXXIX, Rr. 1 & 2, C.P.C. were dismissed, in circumstances.


Citation Name : 2019 PTD 389 KARACHI-HIGH-COURT-SINDH
Side Appellant : YOUNG'S (PRIVATE) LIMITED
Side Opponent : PROVINCE OF SINDH
Ss. 2 (72B), 2 (72C), 2 (79), 3, 4, 5, 8, 9, First Schedule Tariff Heading 9806.3000 & Second Schedule Part-B---Constitution of Pakistan, Arts. 70, 73, 142 & Fourth Schedule [as amended by Constitution (Eighteenth Amendment) Act, 2010]---Provincial legislation---Renting of immovable property---Services---Economic activity---Petitioners were owners of immovable properties who were aggrieved of imposing of sales TAX under the heading of services on rental income from said properties---Validity---Scope of Provincial Legislation was enhanced while abolishing Concurrent Legislative List from Fourth Schedule to the Constitution---Express restriction upon Provincial Legislation was imposed to the extent of Federal Legislative List in Fourth Schedule to the Constitution---Term 'economic activity' included supply of moveable property by way of lease, license or similar arrangement but supply of immovable property by way of lease, license or similar arrangement was excluded by legislature from the purview of definition of term 'economic activity'---Mere renting of immovable property by landlord to tenant for consideration (rent) did not involve any element of service or TAX able service or economic activity as defined in Sindh Sales TAX on Services Act 2011---Notice of recovery of sales TAX under Sindh Sales TAX on Services Act, 2011, issued by authorities was without LAW ful authority---Mere letting out of immovable property by landlord to a tenant on rent for consideration did not involve any element of providing any TAX able services---Amount of rent received by landlord from tenant could not be subjected to TAX while invoking provision of S.2(72C) of Sindh Sales TAX on Services Act, 2011 read with Tariff Heading 9806.3000 of First Schedule and Part-B of Second Schedule to Sindh Sales TAX on Services Act, 2011---Constitutional petition was allowed in circumstances.


Citation Name : 2019 YLR 2765 KARACHI-HIGH-COURT-SINDH
Side Appellant : Mst. ADEEBA BEGUM
Side Opponent : TRAVEL CORPORATION (PVT.) LTD.
Ss. 8 & 9---Fair rent, fixation of---Requirements---Rent Controller fixed fair rent @ Rs. 30,000/- per month of demised premises but same was reduced to Rs. 20,000/- per month by the Appellate Court---Validity---Tenancy agreements produced by the landlady were with regard to different premises and same did not contain area/ measurement of the same---Said tenancies could not be relied upon for determining fair rent of demised premises---No documentary evidence had been produced to assess fair rent of demised premises---Cost of construction had raised to manifold and property TAX had also enhanced which could be considered for fixing the fair rent of rented premises---Demised premises was situated in the heart of city and business area---Tenant was paying monthly rent to the landlady by enhancing time to time even after institution of present petition---Appellate Court had passed impugned order after consideration of all the relevant facts of the case which was justified and LAW ful on account of prevailing circumstances---Constitutional petition was dismissed, in circumstances.


Citation Name : 2019 PLD 516 KARACHI-HIGH-COURT-SINDH
Side Appellant : Dr. SEEMA IRFAN
Side Opponent : FEDERATION OF PAKISTAN
Arts. 199 & 10A---Income TAX Ordinance (XLIX of 2001), S.122---Constitutional jurisdiction of High Court---Scope---Show-cause notice issued by Department---Nature---Fundamental Right to fair trial and due process of LAW ---Scope---Factual controversies or factual disputes raised in show-cause notice could not be decided in Constitutional jurisdiction but the same were dominion of a competent authority to decide the fate of a show cause notice after providing ample opportunity of hearing with right to fair trial and then pass orders in accordance with LAW ---In matters of show-cause notice, High Court under Art.199 of the Constitution could not assume a supervisory role in every situation to pass an interim order with directions to an Authority to proceed but to not pass final order till decision of a Constitutional petition or to suspend the operation of show-cause notice for an unlimited period of time or to keep the matters pending for an indefinite period---Challenge to a show-cause notice under Art.199 of the Constitution must be sparing and cautious and High Court under its Constitutional jurisdiction may take up writs to challenge show-cause notice(s) if it found such show-cause notice to lack of jurisdiction, be barred by LAW or if the same were abuse of process of the court or coram non judice and in such situation, High Court may quash such show-cause notice(s).


Citation Name : 2019 PLC(CS) 1145 KARACHI-HIGH-COURT-SINDH
Side Appellant : IMTIAZ AHMED BARAKZAI
Side Opponent : FEDERAL TAX OMBUDSMAN
S. 20----Contractual employment----Nature of appointment of advisers and other staff made by Federal TAX Ombudsman---Scope---Petitioner, who was employed on contractual basis by the Federal TAX Ombudsman, impugned termination of his employment before expiry of contract inter alia on the ground that said termination violated the LAW and was made without hearing the petitioner---Validity---Contract employee could not claim any vested right even for regularization of service and S. 20 of the Establishment of the Office of Federal TAX Ombudsman Ordinance, 2000 conferred power on Federal TAX Ombudsman to appoint advisor(s) for assistance at his discretion, which discretion could not be called into question by petitioner---Petitioner had no vested right to remain on temporary contractual post and impugned order could not be questioned by him---Constitutional petition was dismissed, in circumstances.


Citation Name : 2019 PTD 2293 INLAND REVENUE APPELLATE TRIBUNAL OF PAKISTAN
Side Appellant : The COMMISSIONER INLAND REVENUE, ZONE-II, RTO, LAHORE
Side Opponent : GHEE CORPORATION OF PAKISTAN (PRIVATE) LIMITED, LAHORE
S. 2(15)---"Debt"---Scope---Where a TAX payer is entitled to receive a sum of money from another either at LAW or in equity, it is accepted that a debt exists for the purposes of S. 2(15) of Income TAX Ordinance, 2001---Debt is a sum of money due from one person to another---Debt exists where a certain amount of sum is owing from one person to another---'Debt' denotes not only the obligation of the debtor to pay, but also the right of the creditor to receive and enforce payment.

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