COMMISSIONER OF INCOME TAX/WEALTH TAX, MULTAN VS MOVE (PVT.) LTD., MULTAN, 2013 PTD-LAHORE-HIGH-COURT-LAHORE 2040 (2013)

(a) Income Tax Ordinance (XLIX of 2001)---

----S.133---Civil Procedure Code (V of 1908), S.117 & O.XLVII, R.1---Reference to High Court---Order in tax-reference passed by High Court---Application for review of such order---Maintainability---No provision existed in Income Tax Ordinance, 2001 empowering High Court to review its own order passed thereunder in reference---High Court while hearing reference could exercise jurisdiction under Income Tax Ordinance, 2001 but not jurisdiction conferred by C.P.C.---Income Tax Ordinance, 2001 being a special law containing complete Code in itself would exclude provisions contained in general law---Jurisdiction of High Court under S.133 of Income Tax Ordinance, 2001 being advisory in nature and not original, appellate or revisional jurisdiction, thus, provisions of O. XLVII, C.P.C.by virtue of S. 117, thereofwould not be applicable---High Court dismissed review application for being not maintainable.

Asif Nawaz Fatiana v. Walayat Shah and others 2007 CLC 610; Aziz Ahmed Mughal v. Rent Controller and others 2006 CLC 1381; MessrsShah Jewana Textile Mills Ltd., Lahore through representative v. United Bank Ltd. Through Attorneys PLD 2000 Lah. 162; Messrs Pak-Libya Holding Co. Ltd. v. MessrsMultitrade (Pvt.) Ltd. and 3 others 1988 CLC 1648; Nazir Ali M.H. Gangji v. Commissioner of Income Tax, Companies-I Karachi 1994 PTD 958; MessrsN.A. Industries Karachi v. Commissioner of Income Tax, Central Zone"A" Karachi 1993 PTD 45; Rahim Jan's case PLD 2004 SC 752; Syed Arif Raza Rizvi v. Messrs Pakistan International Air Line through Chairman/M.D. Karachi PLD 2001 SC 182; Brother Steel Mills Ltd. and others v. Mian Ilyas Miraj and 14 others PLD 1996 SC 543; Pakistan Fisheries Ltd. Karachi and others v. U.B.L. PLD 1993 SC 109; Valuegold Limited v. United Bank Ltd. PLD 1999 Kar. 1; MessrsShafique Hanif (Pvt.) Ltd. Karachi v. Bank of Credit and Commerce International (Overseas) Ltd. Karachi PLD 1993 Kar. 107 and Collector of Sales Tax (East) Karachi v. Customs, Exicse, Sales Tax Appellate Tribunal, Karachi and another 2003 PTD 1477rel.

(b) Review---

----Right of review being a substantive right is creation of relevant statute on subject.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1; Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94; S.A. Rizvi v. Pakistan Atomic Energy Commission and another 1986 SCMR 965; Muhammad Sharif through Legal Heirs and 4 others v. Sultan Hamayun and others 2003 SCMR 1221; Rahim Jan v. Mrs. Z. Ikram Gardezi and others PLD 2004 SC 752 and Capital Development Authority through Chairman v. Raja Muhammad Zaman Khan and others PLD 2007 SC 121 rel.

Syed Khalid Javed Bukhari for Petitioner.

Ch. Saghir Ahmed and Muhammad Manzoor-ur-Haq for Respondents.

Date of hearing: 22nd May, 2013.

JUDGMENT

ABID AZIZ SHEIKH, J.---This judgment will decide the instant review application, as well as, R.A.No.15-C/2010 involving identical question of law and facts.

2.This is an application under Order XLVII Read with section 117 of the Civil Procedure Code, 1908 ("C.P.C.") for review of order dated 2-6-2010 in T.R. No.116 of 2008 (Multan) passed by this Court under section 133 of the Income Tax Ordinance, 2001 ("Ordinance").

3.The learned counsel for the petitioner argued that this Court vide order dated 2-6-2010 decided the Reference in favour of the respondent relyingupon its earlier decision in T.R. No.98 of 2008,whichdoesnotsquarelyapply to the case of the petitioner, therefore,orderdated2-6-2010 is liable to be recalled through this review petition. At the very outset in response to the question whether the instant review application was maintainable. The learned counsel for the petitioner argued that this Court has jurisdiction to review its own order and in any case, the power of review is provided under Order XLVII, C.P.C., which provision is applicable to this Court under section 117, C.P.C.

4.On the other hand, the learned counsel for the respondent argued that review is not maintainable as there is no provision of review provided in Ordinance.

5.We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the record with their able assistance.

6.There are two questions raised for our determination, firstly whether review is maintainable before this Court under the provisions of Ordinance, 2001 and secondly whether power of review under Order XLVII, C.P.C. is applicable to this Court by virtue of section 117, C.P.C. In response to the first question we note that the Ordinance does not contain any express provision empowering the High Court to review its own judgment under the Ordinance. The historical Scheme of taxation law in Pakistan shows that power of review was never available to High Court as the Income Tax Act, 1922 (Act of 1922) and Income Tax Ordinance, 1979 (Ordinance 1979) did not provide review. Same is the case with the Ordinance.

7.It is well settled by now that right of review is a substantive right and is a creation of the relevant Statute on the subject. Reference in this behalf may be made to law laid down by the august Supreme Court of Pakistan in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1), where it is held as under:--

"The right to claim review of any decision of a Court of law, like the right to appeal, is a substantive right and not a mere matter of procedure. An appeal, as observed by Branwell, L. J., in the case of Sandback Charity Trustees v. North Staffordshire Railway Co. (1)-

"does not exist in the nature of things; a right to appeal from any decision of any Tribunal must be given by express enactment."

This is equally true in case of review, because both appeal and review, though they differ in scope, are substantive rights. As such, neither of them is available unless it has been conferred by law"

8.The aforesaid view of the august Supreme Court was followed in Muzaffar Ali v. Muhammad Shafi (PLD 1981 SC 94) in the following manner:--

"The second reasoning given in the above passage is that as an order passed in review is-(or to be more precise is to be deemed to be)- in continuation of the main Second Appeal, therefore, it follows that if the jurisdiction to hear the Second Appeal existed then the jurisdiction to hear its review must also continue to exist, implying thereby that the process of review is nothing but a continuation of the hearing of the Second Appeal itself. With due respect, this reasoning is also not correct. Aiyer in this Law Lexicon (1940 Edn.), page 1126, while describing a review states that-

"A review is a proceeding which exists by virtue of Statute. It is in the nature of a new trial of the issue previously tried between the parties. The cause of action being brought into Court against for trial by a new petition. The proceeding in some respect resembles a writ of error and also a new trial. . . . ."

To the same strain is the view expressed in Carpus Jursis Secundum at page 339, where it is stated that-

"The proceeding by way of writ of review, or, so it is sometimes called, a petition for review, or action of review, or a review, is a statutory remedy unknown to the common law. It is a civil action or proceeding and is in its nature a new trial of the issues previously tried between the parties. In some respects it resembles, although it also is distinguishable from, a writ of error, as considered in Appeal and Error, and new trial, as discussed in New Trial. It is a separate proceeding from the action sought to be reviewed commenced by a writ which is a new process, as considered infra, and is in one aspect a new and independent proceeding and not merely a new hearing on an existing proceeding or a continuation or further step in the action sought to be reviewed. . . . . ."

The above discussion will show that the assumption on which the above passage was based, namely that a review in appeal is a continuation of the appeal, is not correct, with the result that the further corollary drawn therefrom in favour of existence of a right of review on that score will also consequently fall.

9.While dealing with power of review of the Service Tribunal the august Supreme Court in S.A. Rizvi v. Pakistan Atomic Energy Commission and another (1986 SCMR 965) held as under:--

"Such is not the situation here as the language of the statute itself by a legal fiction assumed the Tribunal to be a civil court for the limited purpose of deciding an appeal under the provisions of Order XLI, C.P.C. In the case of Ahmed Food Industries referred to earlier, Division Bench of the High Court of Sindh and Balochistan of which I was a Member differed from the view expressed in N.Q. Industries v. Mst.Bapai Kaikhusro PLD 1968 Kar. 589 where it was held that the power of review was available to an Industrial Court on the basis of general principle or by virtue of section 20 of the General Clauses Act. The reason being that the power to review was not a matter of mere procedure but of jurisdiction and unless the power was conferred expressly it could not be exercised. Necessarily, therefore, it is substantive right and cannot be by intendmentbeinvokedasisbeingarguedonthelanguageofthe provision. In Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94, this Court eminently laid down that the right of review is a substantive right and is always the creation of relevant statute on the subject. It cannot be assumed on the premise that review of the order in appeal is a continuation of the appeal nor can the theory of continuation of proceedings sufficient to recognize such a right as to open the judgment for scrutiny."

10.The august Supreme Court in Muhammad Sharif through Legal Heirs and 4 others v. Sultan Hamayun and others (2003 SCMR 1221) while making distinction between power of review and cases of fraud, mala fide and defect of jurisdiction held as under:--

"Needless to say that the right of a party to claim a review of final judgment or order of a Court, judicial or a quasi-judicial tribunal, in a substantive matter is not available in the absence of a provision in the relevant statute. See the case of Husain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1), Government of Sindh through the Chief Secretary and others v. Khalid Ahmed and others (1994 SCMR 1472), National Bank of Pakistan v. Islamic Republic of Pakistan (1992 SCMR 1705), S. Sarwat Haider and another v. Central Board of Revenue and others (1987 SCMR 899), S. A. Rizvi v. Pakistan Atomic Energy Commission (1986 SCMR 965), Muzaffar Ali v. Muhammad Shafi (PLD 1981 SC 94) and Zatoon Begum v. Ghulam Shabbir Settlement Commissioner, Multan and another (1968 SCMR 611). However, the case of fraud, mala fide and defect of jurisdiction generally stand on a different footing. It is well settled that fraud vitiates the most solemn proceedings. Reference may be made to the cases of Talib Hussain and others v. Member Board of Revenue and others (2003 SCMR 549), Govt. of Sindh through Chief Secretary and others v. Khalid Ahmed and others (1994 SCMR 782), Muhamamd Younish Khan and 12 others v. Government of N.-W.F.P. through Secretary, Forest and Agriculture and others (1993 SCMR 618), Lal Din and another v. Commissioner, Lahore v. Muhammad Ibrahim (1993 SCMR 710) and Chief Settlement Commissioner Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331)."

11.While determining the question whether review is maintainable under the Arbitration Act, 1940, the august Supreme Court in Rahim Jan v. Mrs. Z. Ikram Gardezi and others (PLD 2004 SC 752) held asunder:--

"Admittedly the Act, 1940 provides right of appeal in terms of sections 17 and 39 but there is no expressed provision for filing of review petition. In this context, it may be noted that not only under the Act, 1940 right of review has not been provided expressly as in some other laws like West Pakistan Urban Rent Restriction Ordinance (VI) of 1959. Besides while providing right to appeal no right of review has been conferred by the law itself and this Court in the case of Muzafar Ali Muhammad Shafi (PLD 1981 SC 94) has held that "Ordinance neither expressly nor by reference bestows any powers of review, the High Court has no jurisdiction to review its order passed in a second appeal under the West Pakistan Urban Rent Restriction Ordinance 1959." This view has been reiterated in the case of (1984 CLC 349), (1986 SCMR 118) and (1986 MLD 978)."

12.The question regarding the power of review by the Wafaqi Mohtasib came up before the august Supreme Court in Capital DevelopmentAuthoritythroughChairmanv.RajaMuhammadZaman Khan and another (PLD2007SC121)anditisheldasunder:--

"it is well-settled by now that "right of review is a substantive right and is always a creation of the relevant Statute on the subject. The assumption that a review in appeal is a continuation of the appeal, is not correct, with the result that the further corollary drawn thereform in favour of existence of a right of review on that score will also consequently fall. Again the theory of continuation of trial or proceeding is not conclusive of the existence of a right to make a previous judgment open for scrutiny whether by a higher Court in the form of appeal or the same Court in the form of a review. For example, it will be appreciated that an appeal is regarded as a continuation of trial, but it is well settled that a jurisdiction or right of appeal does not exist merely on this theory but is to be created or granted by a statute. If so granted and if invoked or exercised, the proceedingsinanappealareconsideredasacontinuationofthetrial,butthebasicfactremainsthatthisjurisdictionisto be bestowed by a statute and statute alone. (Emphasis provided)

13.From the above discussion and law laid down repeatedly by the august Supreme Court it is evident that there is no power of review available with this Court hearing a reference under the Ordinance as it does not contain any express provision empowering the High Court to review the judgment. In this context besides judgments of the august Supreme Court of Pakistan discussed above, we are also fortified by law laid down by this court in Asif Nawaz Fatiana v. Walayat Shah and others (2007 CLC 610), Aziz Ahmed Mughal v. Rent Controller and others (2006 CLC 1381), MessrsShah Jewana Textile Mills Ltd., Lahore through representative v. United Bank Ltd. Through Attorneys (PLD 2000 Lah. 162), MessrsPak-Libya Holding Co. Ltd. v. MessrsMultitrade (Pvt). Ltd. and 3 others (1988 CLC 1648), Nazir Ali M.H. Gangji v. Commissioner of Income Tax, Companies-I Karachi (1994 PTD 958), MessrsN.A. Industries Karachi v. Commissioner of Income Tax, Central Zone"A" Karachi (1993 PTD 45).

14.The next question for our consideration is whether power of review under Order XLVII, C.P.C. is applicable to this Court by virtue of section 117, C.P.C. The jurisdiction of the High Court may be divided into five classes i.e. Ordinary, Original, Appellate, Revisional and those special matters which are the subject of special provisions. Ordinary jurisdiction embraces jurisdiction as is exercised in ordinary course of law, without any special steps being necessary to assume it, as opposed to extra-ordinary jurisdiction which the court may assume in its discretion upon special occasion and by special orders. The original civil jurisdiction is conferred by law, which can also regulate it, the appellate jurisdiction is conferred by law to hear a case in appeal against decision of the lower courts, the revisional jurisdiction is subject to condition that order has been passed by subordinate court and no appeal lies against said order, the jurisdiction for special matters is a special jurisdiction of a limited nature conferred not by the Code of Civil Procedure but by special provisions of law. The various classes of jurisdictions enjoyed by the High Court has been discussed by the august Supreme Court of Pakistan, as well as, this Court in Rahim Jan's case (PLD 2004 SC 752), SyedArifRazaRizviv.MessrsPakistanInternationalAirLinethrough Chairman/M.D. Karachi (PLD 2001 SC 182), Brother Steel MillsLtd.andothersv.MianIlyasMirajand14others(PLD1996 SC 543), Pakistan Fisheries Ltd. Karachi and others v. U.B.L. (PLD 1993 SC 109), Valuegold Limited v. United Bank Ltd. (PLD 1999 Kar. 1) and MessrsShafique Hanif (Pvt.) Ltd. Karachi v. Bank ofCredit and Commerce International (Overseas) Ltd. Karachi (PLD 1993 Kar. 107).

15.In hearing a reference under section 133 of the Ordinance, this Court does not exercise jurisdiction conferred by the Code of Civil Procedure, 1908 but by special statute under the Income Tax Ordinance, 2001. The Ordinance being complete Code in itself and a special law shall exclude the provision contained in general law. In this context reference is made to Collector of Sales Tax (East) Karachi v. Customs, Exicse, Sales Tax Appellate Tribunal, Karachi and another (2003 PTD 1477) wherein it is held that:--

"Learned counsel for the appellant has conceded that there is no provision for review of the order passed by this court in Sales Tax Act, 1990 but has contended that the provisions of C.P.C. applicable."

"We do not agree with the submission of learned counsel for the appellant, for the simple reason that the Sales Tax Act is a complete code in itself and a special law shall exclude the provisions contained in general law. The Sales Tax Act contains all the substantive as well as procedural law, pertaining to the charge/levy, assessment and appeals pertaining to the Sales Tax. Mr. Raja M. Iqbal, learned counsel for the appellant has submitted that this Court can exercise the review jurisdiction under the inherent powers, vested in it, under section 151, C.P.C. Civil Procedure Code is not applicable at all, and therefore, the question of exercise of inherent jurisdiction under C.P.C. does not arise.

In this context reference is also made to Muzaffar Ali's case (supra) where it is held that in respect of second appeal under Rent Restriction Ordinance (VI) 1959, review is not maintainable under Order XLVII because provision of section 117, C.P.C. is not applicable under the said law. In Nazir Ali M.H. Gangji's case (supra) in respect of section 136 of the Income Tax Ordinance, 1979 it was held that it is a special jurisdiction not conferred by C.P.C. and in MessrsN.A. Industries, Karachi's case (supra) it was held that power under Income Tax Act, 1922 is special jurisdiction and not part of High Court's original or appellate jurisdiction.

17.(sic) The Ordinance creates special forums for the determination of disputes and question of law relating to tax issues under section 133 of the Ordinance. This jurisdiction exercised by the High Court is purely advisory and is not original, appellate or revisional jurisdiction hence provision of Order XLVII by virtue of section 117, C.P.C. is not applicable.

18.In view of above discussion this review petition is dismissed being not maintainable.

SAK/C-18/LRevision petition dismissed.