Law: Income Tax Ordinance, 2001

Section: 127

CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN, 1973-----Article 199----Constitutional petition is premature as the petitioner has come to court without exhausting statutory remedies.The petitioner has come to Court without exhausting the statutory remedies that are available under the Ordinance. Section 160 of the Ordinance provides that the tax required to be, inter alia, withheld on a payment made under section 151 shall be paid to the concerned Commissioner in the prescribed manner and within the prescribed time. Section 161 empowers the Commissioner to take action to recover the amount in terms as therein stated if there has been a failure either to deduct tax or to deposit any deducted tax in the State treasury by the deducting authority. For present purposes it is necessary to note subsection (IA) of section 161 which requires that before passing an order in terms of section 161(1), an Opportunity of hearing must be given to the concerned person. In our view, the impugned letter dated 24.5.2011 is in the nature of Such an opportunity since clearly the Taxation Officer has called upon the petitioner to explain its position vis-a-vis the stance adopted by the Department with respect to the payments on maturity. If the Department (or concerned authority whose action is impugned) has taken appropriate steps in accordance with law by issuance of a notice, then the taxpayer ought to resort to the statutory provisions and not come rushing to the High Court immediately under Article 199. Reference in this regard can be made to various Division Bench decisions of this Court such as ICI Pakistan Limited v. Federation of Pakistan and others 2006 PTD 778 and Roche Pakistan limited v. Deputy Commissioner of Income Tax and others 2001 PTD 3090. A review of the grounds taken by the petitioner to challenge the notice that was issued indicate that there is nothing therein that would take the petitioner's case out of the scope of the afore-cited decisions and the well-established principles that apply in such circumstances. Therefore, we are of the view that this petition is premature and the petitioner should first avail the statutory remedies and if aggrieved by any…

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