M/S Central Tobacco Company, Chakwal | Appellant | |
Vs | ||
Commissioner Inland Revenue, RTO, Rawalpindi | Respondent | |
Appellant by | Ch. Muhammad Nawaz, Advocate | |
Respondent by | Mr. Muhammad Akram, DR | |
Date of hearing | 27.05.2019 | |
Date of order | 27.05.2019 |
M M Akram(Judicial Member) Through this miscellaneous application, the appellant prays for the
implementation/enforcement of order/judgment dated 18-02-2019 passed by this
Tribunal vide STANo.367/IB/2018.
2. The
basic issue of the appellant is for the implementation of the judgment dated 18-02-2019
passed by this Tribunal in its favour in STA No.367/IB/2018. It is the case of
the appellant that so far no stay has been granted to the department/respondent
against the said judgment. Hence, it should be implemented. He contended that section
224 of the Income Tax Ordinance, 2001 (“the Ordinance”) provides that any
proceedings under the Ordinance inter alia before the Tribunal shall be treated
as judicial proceedings for the purpose of deciding any appeal be deemed to be
a Civil Court and shall have the same powers as are vested in a Civil Court
under the Code of Civil Procedure of 1908. The Tribunal, therefore, having all
the powers of the Civil Court can implement/enforce its own judgment.
3. Learned
DR has argued to the contrary. He stated that this Tribunal does not possess
the requisite power under the Ordinance to implement or enforce its own
judgment because the statute does not provide it with the necessary powers. He
further argued that there is nothing in the Ordinance which enables the
Tribunal to execute its own judgment as it has no power to deal with contempt
of court. He submits that with the power of contempt, a court can ensure that
its judgment is enforced. He also states that section 132 of the Ordinance is
limited to deciding the appeal. As such, there is no power for enforcing the
judgment in appeal.
4. Heard learned counsel for the parties and perused the record available on the file. The Appellate Tribunal Inland Revenue is established under section 130 of the Income Tax Ordinance, 2001 to exercise jurisdiction regarding matters relating to income tax, sales tax, and federal excise. Sections131, 46, and 34 of the Ordinance, 2001, Sales Tax Act, 1990, and Federal Excise Act, 2005 respectively provide for an appeal to the Tribunal against the order passed by the Commissioner Appeal, Commissioner Inland Revenue or Board. The powers of the Tribunal are contemplated in Section 132 of the Ordinance, which reads as follows:-
“132. Disposal of appeals by the Appellate Tribunal:- (1) The Appellate Tribunal may, before disposing of an appeal, call for such particulars as it may require in respect of the matters arising on the appeal or cause a further enquiry to be made by the Commissioner.
(2) The Appellate Tribunal shall afford an
opportunity of being heard to the parties to the appeal and, in case of default
by any of the parties on the date of hearing, the Tribunal may proceed ex parte
to decide the appeal on the basis of the available record.
(2A) The Appellate Tribunal shall decide the
appeal with six months of its filing.
(3) Where the appeal relates
to an assessment order, the Appellate Tribunal may, without prejudice to the
powers specified in sub-section (2), make an order to -
(a) affirm,
modify or annul the assessment order; or
(b) ....................................................
(c) remand the case to the Commissioner or the
Commissioner (Appeals) for making such enquiry or taking such action as the
Tribunal may direct.
(4)
The Appellate Tribunal shall not increase the amount of any assessment or
penalty or decrease the amount of any refund unless the taxpayer has been given
a reasonable opportunity of showing cause against such increase or decrease, as
the case may be.
(5)
Where, as the result of an appeal, any change is made in the assessment of an
association of persons or a new assessment of an association of persons is
ordered to be made, the Appellate Tribunal may authorize the Commissioner to
amend accordingly any assessment order made on a member of the association and
the time limit in sub-section (2) of section 122 shall not apply to the making
of such amended assessment.
(6)
Where the appeal relates to a decision
other than in respect of an assessment, the Appellate Tribunal may make an order
to affirm, vary or annul the decision, and issue such consequential directions
as the case may require.
(7)
The Appellate Tribunal shall communicate its order to the taxpayer and the
Commissioner.
(8)
........................................................
(9)
........................................................
(10) Save as provided in section 133, the decision of the Appellate Tribunal on an appeal shall be final.” (Emphasis supplied)
The bare reading of the above
provision of law clearly provides that Tribunal has no powers of Civil Court
under the Civil Procedure Code rather it has only power to make an order to affirm,
modify or annul the assessment order or to remand the case to the Commissioner
or the Commissioner (Appeals) for making such enquiry or taking such action as the
case may require. There is no quibble to the proposition that the Tribunal is a
Judicial Tribunal for the reason that it adjudicates the rights and liabilities
of the parties, the orders passed by the Tribunal under section 132 (3), (4),(5),
and (6) of the Ordinance, 2001, section 46 of the Sales Tax Act, 1990 and section
34 of the Federal Excise Act, 2005 are Judicial Orders. Section 224 of the
Ordinance asserts that the proceedings inter alia before the Tribunal are
judicial and section 227 banishes the jurisdiction of the Civil Courts in
respect of the matters decided by the Tribunal. The contention of the learned counsel for the appellant
does not cater to the correct interpretation of section 132 read with section
224 of the Ordinance. The said provisions do not assert that the Tribunal has
all the powers of a Civil Court when it decides an appeal.
5. The
question of whether the Appellate Tribunal is a Court within the meaning of
word mentioned in Article 175 of the Constitution of Islamic Republic of
Pakistan, 1973 was deliberated by the Hon'ble Supreme Court of Pakistan in the case
titled "Army Welfare Trust v. Collector of Sales Tax"
(C.P. No.1983/2012) dated
23.09.2016. To decide the matter, the August Apex Court observed as follows: -
"6.
Therefore, the question arises whether the Appellate Tribunal is a court
established by law. The Act does not set up the Appellate Tribunal but utilizes
the "Customs, Excise and Sales Tax Appellate Tribunal" already set up
under section 194 of the Customs Act, 1969 (see sub-section (1) of section 2 of
the Act) The Federal Government constitutes the Appellate Tribunal which
comprises of judicial and technical members (sub-section (1) and (2)
respectively of section 194 of the Customs Act). The qualification of a
judicial member is provided in sub-section (2) and of a technical member in sub-section
(3) of section 194 of the Customs Act. The Federal Government also appoints the
Chairman and determines the terms and conditions of appointment of the judicial
and technical members (sub-sections (4) and (5) respectively of section 194 of
the Customs Act). Neither through the Sales Tax Act, 1990 ("the Sales Tax
Act" or "the Act") nor through the Customs Act a Court was
established, therefore, the Appellate
Tribunal cannot be categorized as a Court.
7. The Appellate Tribunal can also not be equated with the tribunals envisaged in the Constitution which exercise judicial powers, such as tribunals established under Article 212 and election tribunals under Article 225 of the Constitution Ajmal Mian, C.J., heading a five-member bench of this Court in the case of Mehram Ali v. Federation of Pakistan (PLD 1998 Supreme Court 1445) held, that any Court or Tribunal which is not founded on any of the Articles of the Constitution cannot lawfully share judicial power with the Courts referred to in Articles 175 and 203 of the Constitution" (sub-paragraph (iii) of paragraph 11, page 1477). A more recent judgment of a three-member bench of this Court authored by Iftikhar Muhammad Chaudhry, C.J., in the case of Riaz-ul-Haq v. Federation of Pakistan (PLD 2013 Supreme Court 501) held, that since the Federal and Provincial Service Tribunals perform judicial functions and are set up pursuant to Article 212 of the Constitution they have to be made autonomous and independent of the Executive arm of the governments in compliance with the mandate of the Constitution (clause (3) of Article 175) which provides for the separation of the Judiciary from the Executive. The Appellate Tribunal is not mentioned or provided for in the Constitution, therefore, it cannot be categorized or be deemed to be a Court in terms of paragraph (d) of clause (2)of Article 185 of the Constitution. When through the impugned judgment the High Court set aside the Appellate Tribunal's order it did not do so of a Court immediately below. Consequently, the petitioner acted in accordance with the Constitution when it preferred a petition seeking leave to appeal the impugned judgment. The above-mentioned office objection is, therefore, overruled." (Emphasis supplied)
By
following the ratio decided by the Apex Court in the above judgment, the
Hon,ble Islamabad High Court in the case titles Javed Iqbal Vs Pakistan Mobile
Communication Ltd (2017 PTD 1257) has also held that Appellate
Tribunal Inland Revenue is established under the Ordinance cannot be equated as
a Court. This Tribunal is,
therefore, not vested with the power to do complete justice, adjudicate, and
then implement/enforce. Since the Tribunal may on appeal confirm, annul, vary,
modify or remand the case to the Commissioner or the
Commissioner (Appeals) for making such enquiry or taking such action as the
case may require in consequence of the order appealed against, it cannot implement such
orders/judgments. There is nothing relevant in section 132 which provides the
powers of the Tribunal to execute/enforce its orders/judgments. Further, this
Tribunal cannot implement its
decision because it does not possess the power conferred on a Court to take
action for contempt of Court. Accordingly, we do not find any substance in the
instant application which is misconceived in law, and hence, the same is hereby
dismissed. However, the appellant can seek remedy for implementation of the
order before the competent court if he so desires.
6. The application is disposed of in the manner indicated above. This order consists of (04) pages and each page bears my signature.
Sd/- | Sd/- (M.M. AKRAM) JUDICIAL MEMBER |
(NADIR MUMTAZ WARRAICH) ACCOUNTANT MEMBER |
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