THE LAW AS HELD THAT PETITIONER CASE IS NOT COVERED BY CLAUSE 000-F OF THE 0ND SCHEDULE OF THE INCOME TAX ORDINANCE, 2001

BEFORE THE CITY HIGH COURT,

CITY BENCH

Writ Petition No. __________-A/0000

 

Name & Sons, Govt. Contractors, through Name son of Name, Sole Proprietor, resident of Name, Tehsil & District, City.

…PETITIONER

 

VERSUS

 

  1. of Pakistan, Ministry of Finance, through Secretary Finance, Govt. of Pakistan, C/o Pak Secretariat, City.
  2. Federal Board of Revenue (FRB), through Chairman FBR, City.
  3. Chief Commissioner, Inland Revenue, C/o Regional Tax Office, City.
  4. Commissioner Income Tax, Zone-II, Regional Tax Office, City.
  5. Additional Commissioner, Zone-II, Regional Tax Officer, City.
  6. Assistant Commissioner Unit-II, Zone-II, Regional Tax Office, City.
  7. Manager, Bank Name, City Branch.
  8. Manager, Bank Name, City Branch.
  9. Manager, Bank Name, City Branch.
  10. Manager, Bank Name, City Branch.
  11. Manager, Bank Name, City Branch.
  12. Manager, Bank Name, City Branch.

 

…RESPONDENTS

 

WRIT PETITION UNDER ARTICLE 199 OF THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN, 1973, AS AMENDED UPTO DATE, SEEKING DECLARATION/ DIRECTION AGAINST RESPONDENTS TO THE EFFECT, THAT PETITIONER FIRM IS A REGISTERED WITH PAKISTAN ENGINEERING COUNCIL, THE RESPONDENT NO.0 ISSUED ORDER U/S 000(0-A) OF THE INCOME TAX ORDINANCE, 2001, DATED 00/00/0000 FOR THE RECOVERY OF RS.00,00,000/- WHICH IS NOT ONLY TIME BARRED BUT ALSO BACK DATED, AND SAME IS IN VIOLATION OF SECTION 000(0) AND 000(0) OF THE INCOME TAX ORDINANCE, 2001, AS THE ORDER WAS PASSED THROUGH DOCUMENT NO.0000-0, DATED 00/00/0000, AND HAS BEEN MAILED THROUGH GPO, CITY RECEIPT NO.UMS-0000000 ON 00/00/0000 TO THE PETITIONER, THE ORDER IN QUESTION IS AGAINST THE LAW AS HELD THAT PETITIONER CASE IS NOT COVERED BY CLAUSE 000-F OF THE 0ND SCHEDULE OF THE INCOME TAX ORDINANCE, 2001, THE FBR (RESPONDENT NO.0) ISSUED CLARIFICATION VIDE NO. C.NO.0(0)ITP0000, DATED 00/00/0000, SPECIFICALLY FOR THE (PRESUMPTIVE TAX REGIME) PTR CASES WHICH DETERMINED THAT CLAUSE 000(F) WAS ALSO PERMISSIBLE TO PTR CASES, AND THE ASSISTANT COMMISSIONER, UNIT-II, ZONE-II (RESPONDENT NO.0) ISSUED NOTICE U/S 000, READ WITH RULE 00 OF THE INCOME TAX ORDINANCE, 2001 TO ALL THE BANKS IN WHICH THE PETITIONER HOLD, THEIR ACCOUNTS (RESPONDENTS NO.0 TO 00) FOR RECOVERY OF ABOVE MENTIONED AMOUNT, AND IN LIEU OF THE NOTICE THE BANKS (RESPONDENTS NO.0 TO 00) FREEZED THE ACCOUNTS OF THE PETITIONER, HENCE THE SO-CALLED RECOVERY FROM PETITIONERS ACCOUNT IS ILLEGAL, UNLAWFUL, ARBITRARY, MALAFIDE, DISCRIMINATORY, WITHOUT JURISDICTION AND BEYOND JURISDICTION, AGAINST THE PRINCIPLE OF AUDI-ALTRUM-PALTRUM, VOID, AB-INITIO, IN VIOLATION OF ARTICLES 0, 0 & 00 OF THE CONSTITUTION IBID, WITHOUT ANY NOTICE, SHOW CAUSE, WITHOUT AFFORDING ANY OPPORTUNITY OF PROPER HEARING, RECOVERY OF EXEMPTED AMOUNT, AS UNJUSTIFIED AND WITHOUT LAWFUL JUSTIFICATION, HENCE, ALL THE PROCEEDINGS CARRIED OUT BY RESPONDENTS NO.0 AND 0 ARE LIABLE TO BE STRUCK DOWN AND RESPONDENTS BE ALSO DIRECTED TO PROCEED IN THE MATTER STRICTLY IN ACCORDANCE WITH LAW, WITHOUT DISCRIMINATION AND AS THE PETITIONER CHALLENGED THE ORDER BEFORE COMMISSIONER INLAND REVENUE (APPEALS) BY WAY OF APPEAL NO.0000M DATED 00/00/0000, THE RECOVERY OF AMOUNT FROM PETITIONER BE ORDERED TO BE STAYED TILL THE FINAL DISPOSAL OF APPEAL AS PER DECISIONS MADE BY THE HONOURABLE LAHORE HIGH COURT IN WRIT PETITION NO.0000 OF 0000 REPORTED IN 0000 PTD 000, WRIT PETITION NO.0000 OF 0000, REPORTED IN 0000 PTCL 000 AND 0000 PTD 0000, WRIT PETITION NO.0000 OF 0000, REPORTED IN 0000 PTCL 000 AND 0000 PTD 0000 AND WRIT PETITION NO.0000 OF 0000, REPORTED IN 0000 PTD 0000. ANY OTHER ORDER/ DIRECTION/ RELIEF WHICH THIS HONOURABLE COURT MAY DEEMED FIT AND PROPER IN THE CIRCUMSTANCES BE ALSO GIVEN.

====================================

 

It may please your lordships;-

 

The facts giving rise to the instant constitutional petition are arrayed as under;-

 

  1. That, petitioner firm is registered with Pakistan Engineering Council as well as with FBR vide NTN-0000000-0, and exempting constructual contracts with the provincial as well as with the Federal Govt. (Copies of certificates of Pakistan Engineering Council and FBR are appended as Annexure “A” & “B” respectively).

 

  1. That Federal Board of Revenue (FBR) after insertion of Clause 000(f) Income Tax Ordinance, 0000, issued a circular No.00 of 0000, dated 00/00/0000, in which the exempted area’s were defined as Province, FATA and PATA for a period of 00 years with effect from tax year 0000 upto tax year 0000. (Copies of inserted clause 000(F) and circular dated 00/00/0000 are appended as Annexure “C” & “D” respectively).

 

 

  1. That the Chief Income Tax Policy, FBR, issued circular C.NO.0/(0)ITP/0000, dated 00/00/0000 by declaring that clause 000(F) is also permissible to Presumptive Tax Regime (PTR). (Copy of the letter is appended as Annexure “E”).

 

 

  1. That, the Commissioner Inland Revenue (Respondents No.0 & 0) issued Income Tax Refund u/s 000 of the Income Tax Ordinance, 0000 to the petitioner firm amounting to Rs.0000/- through original assessment order u/s 000 of the Ordinance ibid, dated 00/00/0000. (Copy of the letter dated 00/00/0000 is appended as Annexure “F”).

 

  1. That, the Additional Commissioner (respondent No.0) passed an Amendment Order u/s 000(0-A) of the Ordinance ibid, by rejecting the refund of the petitioner and created tax demand of the refunded amount Rs.00,00,000/- vide Order DCR No.00/0, dated 00/00/0000, but was not intimated to the petitioner in due course of time. (Copy of the order dated 00/00/0000 is appended as Annexure “G”).

 

  1. That it is pertinent to mention that, the order (Annexure “G”) was passed on 00/00/0000 and was mailed to the petitioner through registered post vide UMS NO.00000 dated 00/00/0000. (Copy of envelop duly stamped by GPO City and GPO receipt No.000, dated 00/00/0000 are appended as Annexure “H” & “I” respectively).

 

  1. That, order (Annexure “G”) passed by Additional Commissioner (respondent No.0) is apparently time barred, as the back dated order which too is beyond the limitation period of 00 years which as envisaged in Section 000(0) and 000(0) of the Ordinance ibid, as the limitation starts from the date of issuance of original deemed assessment order u/s 000, i.e dated 00/00/0000, which expires on or before 00/00/0000, reliance is placed on the decisions of Honourable City High Court in writ petition No.0000 of 0000, reported in 0000 PTD 0000, Tax Reference No.00, 00 and 00 of 0000, passed by City High Court, reported in 0000 PTD 0000, PTR No.000/0000 titled “Commissioner Inland Revenue v/s Name”, decided on 00/00/0000 by the Honourable Lahore High Court, TR.No.00 of 0000, reported in 0000 PTD 0000, and order passed by Appellate Tribunal Inland Revenue, in citation 0000 PTD 000. (Copies of the judgments are appended as Annexure “J-1” to “J-5” respectively).

 

  1. That, petitioner feeling aggrieved of the unlawful acts of respondents filed appeal under the law before appellate forum i.e Commissioner Inland Revenue (Appeals) City vide appeal No.0000, dated 00/00/0000, which is pending adjudication. (Copies of appeal form and grounds of appeal are appended as Annexure “K” & “L” respectively).

 

 

  1. That, respondents No.0 & 0, knowingly and deliberately about the institution of appeal, issued notice u/s 000, read with rule 00 of the Ordinance ibid dated 00/00/0000 to the Banks in which the petitioner holds their accounts the notice in question was issued in disregard of the procedure as per law, without any information/ intimation to the petitioner and without issuing Notice u/s 000 of the Ordinance ibid which is pre-requisite of issuance of Notice u/s 000 of Ordinance ibid, hence, act of respondents amounts to personal grudge proved malafide and while issuing the same, they ignored all the rules and statutory provisions of the laws on the subject. (Copies of the abstract of Section 000 and 000 for ready reference and notice u/s 000 dated 00/00/0000 are appended as Annexure “M-1” to “M-2” & “N” respectively).

 

 

  1. That, petitioner feeling aggrieved of the illegal, unlawful, arbitrary, malafide, discriminatory, without jurisdiction and beyond jurisdiction, against the provisions of law of natural justice and relevant laws on the subject, acts of respondents come to invoke the extraordinary jurisdiction of this Honourable Court, inter-alia, amongst many others;-

 

 

G R O U N D S

 

 

  1. That, notices/ letters issued by respondent No.0 and 0 to the petitioner as well as to respondents No.0 to 00 (Annexure “G” & “N”) are apparently illegal, unlawful, without lawful authority, arbitrary, malafide, discriminatory, without jurisdiction and beyond jurisdiction, against the principle of maxim Audi-Altrum-Paltrum, hence, liable to be struck down.

 

 

  1. That, Federal Board of Revenue (FBR), after insertion of clause 000 (F) in Income Tax Ordinance, 0000 had issued circular No.00 of 0000 (Annexure “C” & “D”) in which the exempted areas were defined and exempted for a period of 0 years w.e.f tax year 0000 upto tax year 0000, and the Chief Income Tax Policy, FBR also issued a circular (Annexure “E”) by declaring the clause 000 (F) is also permissible to Presumptive Tax Regime (PTR).

 

  1. That in view of the insertion of clause 000 (F) of the Ordinance ibid, the Commissioner Inland Revenue (respondents No.0 & 0) issued Income Tax Refund u/s 000 of the Ordinance ibid to the petitioner in the year 0000 (Annexure “F”).

 

 

  1. That Additional Commissioner (respondent No.0) order u/s 000 (0-A) of the Ordinance ibid, rejecting the refund of the petitioner is in violation of the law on the subject, and have no binding effect upon the petitioner.

 

 

  1. That, order (Annexure “G”) was issued and signed on 00/00/0000, but was not sent to the petitioner, and subsequently mailed to the petitioner through registered post/ urgent mail service (UMS) dated 00/00/0000 (Annexure “H” & “I”) which is a proved malafide on part of respondent No.0, hence, liable to be struck down.

 

 

  1. That, order (Annexure “G”) is not only time barred but have been mailed after ten months of its issue date, even otherwise it was mailed on 00/00/0000 even than it was beyond the limitation period of 00 years as per Section 000(0) and Section 000(0) of the Ordinance ibid. The limitation starts from the date of issuance of Original Deemed Assessment Order u/s000 i.e dated 00/00/0000 which expires on 00/00/0000, hence, the order dated 00/00/0000 (Annexure “G”) has no legal and binding effect at all and is liable to be struck down.

 

  1. That, petitioner approached the forum under the law for redressal of his grievance and genuine demands, but even than the respondents No.0 issued Notice u/s 000 read with rule 00 dated 00/00/0000 to the banks holding petitioner accounts, the notice is also a proved act of malafide and personal grudge as same has been issued in disregard of the procedure as per law, without any intimation/ information to the petitioner and without issuing notice u/s 000 of the Ordinance ibid which is a pre-requisite of issuance of Notice u/s 000. Hence, the notice in question is liable to be struck down.

 

  1. That, acts of respondents No.0 & 0 is not only in violation of the statute but also against the fundamental rights of protected under the constitution and is also against the law of natural justice, harsh and a proved act of biasness.

 

  1. That, during pendency of appeal, the respondents have no authority to issue such type of notices, and Honourable Lahore High Court in number of judgments in identical situation had ordered the status quo with regard to any taxation/ recoveries. (Copies of the judgments are appended as Annexure “O-0” to “O-0” respectively).

 

  1. That notices to respondents for filing of the titled petition were duly served to the respondents through registered mail. (Copies of the notices and post office receipts are appended as Annexure “P” & “Q” respectively).

 

  1. That court fee stamp paper worth Rs. 500/- is attached with the petition.

 

It is, therefore, most respectfully prayed that by accepting the titled petition, the notice issued u/s 000 may graciously be ordered to be struck down as prayed in the heading of the petition till the final disposal of appeal/ titled petition. Any other order/ relief/ direction which this Month Court may deemed fit and proper in the circumstances, for the administration of justice be also given.

 

INTERIM RELIEF;

 

The petitioner having prima facie, arguable case in his favour, and burden of inconvenience also tills in favour of petitioner, the operation of notice impugned dated 00/00/0000 may graciously be ordered to be stayed till the final disposal of appeal/ titled petition and also affording the petitioner an opportunity of proper hearing alongwith documentary proofs and issue of petitioner be decided strictly in accordance with law.

 

 

 

…PETITIONER

Through

Dated: ____________/0000

 

(Name)

Advocate Supreme Court of Pakistan, City

&

 

(Name)

Advocate High Court

 

VERIFICATION:-

 

Verified on oath that the contents of foregoing writ petition are true and correct to the best of our knowledge and belief and nothing has been concealed therein from this Honourable Court.

 

 

…PETITIONER

 

BEFORE THE CITY HIGH COURT,

CITY BENCH

 

 

Writ Petition No. __________-A/0000

 

 

Name & Sons, Govt. Contractors, through Name son of Name, Sole Proprietor, resident of Name, Tehsil & District, City.

…PETITIONER

 

VERSUS

 

 

Govt. of Pakistan, Ministry of Finance, through Secretary Finance, Govt. of Pakistan, C/o Pak Secretariat, City & others.

…RESPONDENTS

 

 

WRIT PETITION

 

 

AFFIDAVIT

 

 

I, Name son of Name, Sole Proprietor, resident of Name, Tehsil & District, City, do hereby solemnly affirm and declare that the contents of foregoing writ petition are true and correct to the best of my knowledge and belief and nothing has been concealed therein from this Honourable Court.

 

DEPONENT

 

 

 

BEFORE THE CITY HIGH COURT,

CITY BENCH

 

 

Writ Petition No. __________-A/0000

 

 

Name & Sons, Govt. Contractors, through Name son of Name, Sole Proprietor, resident of Name, Tehsil & District, City.

…PETITIONER

 

VERSUS

 

 

Govt. of Pakistan, Ministry of Finance, through Secretary Finance, Govt. of Pakistan, C/o Pak Secretariat, City & others.

…RESPONDENTS

 

 

WRIT PETITION

 

 

CERTIFICATE

 

 

 

Certified that no such like writ petition has earlier been filed, nor decided by this Honourable Court. It is prayed that the titled writ petition may pleased be fixed before Divisional Bench of this Honourable Court.

 

It is further certified that notice of writ petition alongwith grounds of writ has been dispatched to the respondents.

 

 

…PETITIONER

Through

Dated: ____________/0000

 

(Name)

Advocate Supreme Court of Pakistan, City

 

BEFORE THE CITY HIGH COURT,

CITY BENCH

 

 

Writ Petition No. __________-A/0000

 

 

Name & Sons, Govt. Contractors, through Name son of Name, Sole Proprietor, resident of Name, Tehsil & District, City.

…PETITIONER

 

VERSUS

 

 

Govt. of Pakistan, Ministry of Finance, through Secretary Finance, Govt. of Pakistan, C/o Pak Secretariat, City & others.

…RESPONDENTS

 

 

 

WRIT PETITION

 

 

LIST OF BOOKS

 

 

 

  1. Constitution of Islamic Republic of Pakistan, 1973.

 

 

  1. Other relevant law books shall be cited at bar.

 

 

 

 

…PETITIONER

Through

Dated: ____________/0000

 

(Name)

Advocate Supreme Court of Pakistan, City

 

 

 

 

BEFORE THE CITY HIGH COURT,

CITY BENCH

 

 

Writ Petition No. __________-A/0000

 

 

Name & Sons, Govt. Contractors, through Name son of Name, Sole Proprietor, resident of Name, Tehsil & District, City.

…PETITIONER

 

VERSUS

 

 

Govt. of Pakistan, Ministry of Finance, through Secretary Finance, Govt. of Pakistan, C/o Pak Secretariat, City & others.

…RESPONDENTS

 

 

WRIT PETITION

 

 

ADDRESSES OF THE PARTIES

 

 

Respectfully Sheweth:-

 

 

Addresses of the parties are as under:-

 

 

Name & Sons, Govt. Contractors, through Name son of Name, Sole Proprietor, resident of Name, Tehsil & District, City.

…PETITIONER

 

 

 

VERSUS

 

 

 

  1. of Pakistan, Ministry of Finance, through Secretary Finance, Govt. of Pakistan, C/o Pak Secretariat, City.

 

  1. Federal Board of Revenue (FRB), through Chairman FBR, City.

 

  1. Chief Commissioner, Inland Revenue, C/o Regional Tax Office, City.

 

  1. Commissioner Income Tax, Zone-II, Regional Tax Office, City.

 

  1. Additional Commissioner, Zone-II, Regional Tax Officer, City.

 

  1. Assistant Commissioner Unit-II, Zone-II, Regional Tax Office, City.

 

  1. Manager, Bank Name, City Branch.
  2. Manager, Bank Name, City Branch.
  3. Manager, Bank Name, City Branch.
  4. Manager, Bank Name, City Branch.
  5. Manager, Bank Name, City Branch.
  6. Manager, Bank Name, City Branch.

 

…RESPONDENTS

 

 

 

 

…PETITIONER

Through

Dated: ____________/0000

 

(Name)

Advocate Supreme Court of Pakistan, City

 

 

BEFORE THE CITY HIGH COURT,

CITY BENCH

 

 

Writ Petition No. __________-A/0000

 

 

Name & Sons, Govt. Contractors, through Name son of Name, Sole Proprietor, resident of Name, Tehsil & District, City.

…PETITIONER

 

VERSUS

 

 

Govt. of Pakistan, Ministry of Finance, through Secretary Finance, Govt. of Pakistan, C/o Pak Secretariat, City & others.

…RESPONDENTS

 

 

WRIT PETITION

 

 

INDEX

 

 

S.# Description Page # Annexures
1. Writ petition with affidavit and certificate 1 to 18  
2. List of Books 19  
3. Addresses of the parties 20 to 21  
4. Copies of certificates of Pakistan Engineering Council and FBR 22 to 23 “A” & “B”
5. Copies of inserted clause 000(F) and circular dated 00/00/0000 24 to 26 “C” & “D”
6. Copy of the letter 27 “E”
7. Copy of the letter dated 00/00/0000 28 to 30 “F”
8. Copy of the order dated 00/00/0000 31 to 33 “G”
9. Copy of envelop duly stamped by GPO Abbottabad and GPO receipt No.000, dated 00/00/0000 34 to 35 “H” & “I”
10. Copies of the judgments 36 to 56 “J-1” to “J-5”
11. Copies of appeal form and grounds of appeal 57 to 59 “K” & “L”
12. Copies of the abstract of Section 000 and 140 for ready reference and notice u/s 000 dated 00/00/0000 60 to 62 “M-1” to “M-2” & “N”
13. Copies of the judgments 63 to 66 “O-1” to “O-4”
14. Copies of the notices and post office receipts 66 to 68 “P” & “Q”
15. Court fee stamp paper worth of Rs. 500/- 69  
16. Wakalatnama 70  

 

 

 

 

…PETITIONER

Through

Dated: ____________/0000

 

(Name)

Advocate Supreme Court of Pakistan, City

&

 

(Name)

Advocate High Court

 

 

OFFICE OF NAME

Advocate Supreme Court of Pakistan, office at City

 

To

 

  1. of Pakistan, Ministry of Finance, through Secretary Finance, Govt. of Pakistan, C/o Pak Secretariat, City.
  2. Federal Board of Revenue (FRB), through Chairman FBR, City.
  3. Chief Commissioner, Inland Revenue, C/o Regional Tax Office, City.
  4. Commissioner Income Tax, Zone-II, Regional Tax Office, City.
  5. Additional Commissioner, Zone-II, Regional Tax Officer, City.
  6. Assistant Commissioner Unit-II, Zone-II, Regional Tax Office, City.
  7. Manager, Name Bank, City Branch.
  8. Manager, Name Bank, City Branch.
  9. Manager, Name Bank, City Branch.
  10. Manager, Name Bank, City Branch.
  11. Manager, Name Bank, City Branch.
  12. Manager, Name Bank, City Branch.

 

 

Subject:       NOTICE OF FILING OF WRIT PETITION.

 

 

On the advice of my client M/s Name & Sons, Govt. Contractors, through Name son of Name, Sole Proprietor, resident of Name, Tehsil & District, City, a writ petition is being filed before the Honourable City High Court, City Bench. A notice/ intimation of the same is being sent to you for information/ necessary action under the law. Copy of writ petition is attached herewith.

 

 

Dated: ____________/0000

 

(Name)

Advocate Supreme Court of Pakistan, City

 

 

 

CITY HIGH COURT, CITY BENCH

 

 

 

Advocate Detail

 

Full Name: Name

 

Father’s Name: Name

 

Date of Birth: 00/00/0000                          CNIC # 00000-0000000-0

 

Permanent Address: Name`

Present Address:      —As Above–

 

Email: asc@gmail.com                     District: City

Mobile # 0000-0000000

License No. DC: bc-00-0000                                             Issue Date: 00/00/0000

License No. HC: bc-10-1143                                             Issue Date: 00/00/0000

License No. SC: _______________                                 Issue Date: 00/00/0000

 

 

MENTION YOUR PENDING CASES:

 

 

Case No. Petitioner Respondent
WP No. _____-A/0000 Name Department
CR No. _____-A/0000 Name Department
WP No. _____-A/0000 Name Department
WP No. _____-A/0000 Name Department
     
     
     

 

 

 

 

Signature: ________________

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