| Citation(s) |
|---|
| 2018 SLG 1174 2018 SLD 1174 2018 SCMR 939 2018 PTD 1204 2018 PTCL 700 (2018) 118 TAX 260 |
Civil Appeals Nos. 633 to 637 of 2007, 130 to 145 of 2009, 68-70 of 2011, 1229 of 2013, 158 to 160, 983 to 999, 1025-1026 of 2015, 1337, 1353-1356 of 2016, 172-174 of 2017 and Civil Petitions Nos. 261-P to 265-P of 2011, 3697 and 3698 of 2016, decision & hearing Dated: 14-12-2017
Khalid Abbas Khan, Advocate Supreme Court for Appellant/Petitioners (in C.A. 633/07). Hafiz Ahsan Ahmad Khokhar, Advocate Supreme Court for Appellants/Petitioners (in C.As. 633-637/07 and 130-136, 138-140/09). Issac Ali Qazi, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants/Petitioners (in C.As. 68-70/11 and 158-160/15) Dr. Farhat Zafar, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants/Petitioners (in C.As. 1229/13). Ghulam Shoaib Jally, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants/Petitioners (in C.As. 983-999/15, 1025, 1026/15, 1337/16, 1353-1356/16, C.Ps. 3697 and 3698/16). Rehmanullah, Advocate Supreme Court for Appellants/ Petitioners (in C.As. 172-174/17). Raja M. Iqbal, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellants/Petitioners (in C.As. 135, 136/09). Shumail Butt, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Appellants/Petitioner (in C.A. 137/09). Ahmed Raza Kasuri, Senior Advocate Supreme Court for Appellants/Petitioners (in C.A. 141/09). Nemo for Appellants/Petitioners (in C.Ps. 261-265/11). Khalid Anwar, Senior Advocate Supreme Court for
Respondents (in C.As. 983, 996/15). Issac Ali Qazi, Advocate Supreme Court and Raja M. Iqbal, Advocate Supreme Court for
Respondents (in C.As. 984-999/15, 1025-1026/15 and 1229/13) (also in C.A. 134/09). Dr. Farhad Zafar, Advocate Supreme Court for
Respondents (in C.Ps. 263-P, 265-P/11). Shumail Butt, Advocate Supreme Court for
Respondents (in C.Ps. 1353-1356/16). Ghulam Shoaib Jally, Advocate Supreme Court, Raja M. Iqbal, Advocate Supreme Court, Farhat Nawaz Lodhi, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for
Respondents (in C.As. 158-160/15). Raja M. Iqbal, Advocate Supreme Court for
Respondents (in C.A. 137/09). Nemo for
Respondents (in C.As. 633, 634, 636, 637/07 and 130-133/09). Shumail Butt, Advocate Supreme Court for
Respondents (in C.As. 635/07 and 137/09). Habib Qureshi, Advocate Supreme Court for
Respondents (in C.As. 68-70/2011).
PAKISTAN THROUGH CHAIRMAN FBR AND OTHERS
VS
HAZRAT HUSSAIN AND OTHERS
Law: Income Tax Ordinance, 2001
Section: 148,148(1),148(5)
Law: Sales Tax Act, 1990
Section: 3(1)(b),6
Law: Constitution of Pakistan, 1973
Section: 247(3)
(a) Income Tax Ordinance (XLIX of 2001)--- ----Ss. 148(1) & 148(5)---Constitution of Pakistan, Art. 247(3)---Provincially Administered Tribal Areas ("PATA")---Advance income tax on import of raw material/machinery meant for "PATA"---Non-applicability of Income Tax Ordinance, 2001---Constitution itself granted complete immunity for, and in relation to income tax in "PATA"---Tax department, thus, lacked the jurisdiction to collect advance income tax on goods meant and intended for "PATA" under S. 148 of the Income Tax Ordinance, 2001. Commissioner of Income Tax, Peshawar v. Gul Cooking Oil and Vegetable Ghee (Pvt.) Ltd. 2008 PTD 169 distinguished. (b) Sales Tax Act (VII of 1990)--- ----Ss. 3(1)(b) & 6---Constitution of Pakistan, Art. 247(3)---Plant located in Provincially Administered Tribal Areas---Sales tax on import of raw material/machinery meant for "PATA"---Non-applicability of Sales Tax Act, 1990---Constitution itself granted complete immunity for, and in relation to sales tax in "PATA", therefore, provisions of the Sales Tax Act, 1990 did not justify the levy and collection of sales tax on goods meant and intended for "PATA". Master Foam Pvt. Ltd. v. Government of Pakistan PLD 2008 SC 373 distinguished. (c) Appeal--- ----Government department---Appeals should not be filed as a matter of routine or because a decision has been rendered against the (Government) department---Decisions should be taken on a reasonable basis and it was not advisable for government departments to waste public time and money by filing appeals routinely. (d) Interpretation of statutes--- ----Provision of a statute in conflict with the Constitution---Such provision must yield to the superior mandate of the basic law (i.e. the Constitution) which conferred on Parliament the power to enact laws. (e) Exemption--- ----Discretion of Government to allow an exemption---Scope---Policies in relation to grant of exemptions should be applied on a uniform and a non-discriminatory basis---While the power of granting exemptions was discretionary, it was equally true that the said power could not be exercised in a discriminatory manner---Exemptions were to be granted and regulated in terms…
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