DIRECTOR GENERAL, INTELLIGENCE AND INVESTIGATION INLAND REVENUE, ISLAMABAD VS MASTER TILIES AND CERAMIC INDUSTRIES LTD. G.T. ROAD GUJRANWALA, 2016 PTD-FEDERAL-TAX-OMBUDSMAN-PAKISTAN 1443 (2016)

(a) Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000)---

----Ss.14(8), 13 & 9----Review of findings of Federal Tax Ombudsman---Scope----Department, by way of review of impugned order, sought expunction of remarks made by the Federal Tax Ombudsman in the impugned order, on the ground that the said remarks were contradictory, as the Federal Tax Ombudsman had observed that Departmental maladministration was not evident, yet the impugned remarks conflicted with the said finding and a direction to the Chairman FBR in the impugned order to conduct an enquiry into the matter was also not tenable---Validity----In the impugned order, which was under review, the Federal Tax Ombudsman by way of abundant caution had left door open to be able to take cognizance of any Departmental wrongdoing that may come to light at any later stage and should the Department be found later to be lacking in internal check and balance, it ought to be possible to address said deficiency---Such corrective action was clearly contingent upon conclusive identification of persons responsible for alleged leakage of confidential information, which was the matter under consideration in the complaint, and for which there was no oversight mechanism---Fact that complainant might be trying to exploit said remarks of the Federal Tax Ombudsman in the complainant's review petition, was not sufficient justification to warrant their expunction---Present review petition did not establish any readily discernable defect in impugned order that might warrant remedial action in review----Review was rejected, in circumstances.

2012 SCMR 123; 2007 CLC 124; 2009 YLR 1508; 2011 YLR 2452; 2012 YLR 1580; 2013 MLD 1759; 2006 CLD 79; Eli Lily 2009 PTD 1392; 2013 PLC 934 (SC (AJK)); 1996 MLD 2002 (SC (AJ&K)); 1969 SCMR 427 and 2014 SCMR 1858 ref.

(b) Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000)---

----S. 14(8)----Scope of review of findings of Federal Tax Ombudsman under S. 14 of the Establishment of the Office of Federal Tax Ombudsman Ordinance, 2000----Concreted effort to re-argue the entire case and introduction of new issues which were not raised in the original complaint, in a review under S. 14(8) of the Establishment of Office of Federal Tax Ombudsman Ordinance, 2000 was not permissible in law.

PLD 1997 SC 865 (867); 2014 SCMR 1858; 2011 CLC 939 and 2016 CLC 10 rel.

Muhammad Munir Qureshi Advisor Dealing Officer.

Hassan Kamran Bashir for Authorized Representative.

Shahid ul Hassan Chatha, Director I & I - IR/DR Amir Abbas Khan, Addl. Director, I & I, IR/DR for Departmental Representative.

ORDER-IN-REVIEW

ABDUR RAUF CHAUDHRY (FEDERAL TAX OMBUDSMAN).---These are cross review petitions by Director General, Intelligence and Investigation IR, FBR (Deptt.) and Messrs Master Tiles and Ceramic Industries Ltd. (Complainant) filed under section 14(8) of the Establishment of Federal Tax Ombudsman Ordinance, 2000 (FTO Ord.) read with section 13 of Federal Ombudsmen Institutional Reforms Act, 2013 (FOIRA) against Findings/ Recommendations of the Federal Tax Ombudsman (FTO) in his order dated 17.12.2015 disposing of Complaint No.53/ISD/IT(39)/648/2015.

2.Findings/Recommendations have been recorded by FTO in paragraphs 6, 7 and 8 of his order dated 17.12.2015 disposing of Complaint No. 53/ISD/IT(39)/648/2015. Excerpts there-from are reproduced hereunder:--

. . . The Complainant's contention that enquiry/investigation carried out by the Directorate of I & I and issuance of notices by them were out of jurisdiction, has not been found to be legally correct.

". . . The officers of the Directorate of I & I were, therefore, legally justified to conduct enquiry and issue notice under the provisions of section 230 of the Ordinance read with S.R.O., No.115(I)/2015 dated 09.02.2015."

. . . As regards leakage of information of the Complainant to the press and the Complainants claim of defamation/vilification campaign by the FBR functionaries . . . in case the Complainant and its directors had felt that their honour/dignity was tarnished they could have followed proper recourse by filing defamation suit in a court of law. No such action has been taken at the relevant/proper time.

. . . it needs to be probed as to who was responsible for leaking the confidential information with specific details of Complainants to the press.

. . . Chairman FBR is advised to . . . reconsider the unbridled powers given to Directorate General (I & I).

3.Preliminary objections against the Dept'l review petition have been raised by Complainant/AR. He contends that Dept'l review petition has been filed by respondent No.2 (DG(I&I) in the Complaint (original/amended) only and the other cited respondents have not been impleaded. This is assailed as highly irregular. Additionally it is stated that the Dept'l review petition suffers from a serious deficiency insofar as it is not supported by any affidavit. In this context AR has drawn attention to Supreme Court of Pakistan Rules, 1980 (Order VIII - Affidavits) to state that filing of an affidavit along with a review petition was essential.

4.The Dept'l Representatives (DRs) responded to these preliminary objections to state that the Dept'l Review petition had been rightly filed by the DG (I&I) as he is the executive head of the organization and is fully authorized to represent I&I in his individual capacity before all fora on behalf of FBR including before the FTO. As for the stated requirement to file an affidavit along with the review petition, he argued that examination of the statute (FTO Ordinance) and FTO Regulations did not reveal any stipulation therein to this effect. The DR further contended that if this is seen as a significant technical requirement by the FTC, then, in that case, the Deptt could file an affidavit at any stage of the proceedings and absence of affidavit would not automatically invalidate the review petition.

5.The Dept'l Review Petition No.03/2016 seeks expunction of FTO observations regarding "unbridled powers" of I&I and it also seeks recall of direction to Chairman FBR to investigate the alleged leakage of confidential information on the Dept'l record pertaining to Complainant to various print media. The Deptt contends that when the order dated 15.12.2015 had not held them guilty of maladministration, the observation regarding "unbridled powers" of I&I in the impugned order and the direction to the Chairman FBR for enquiry against l&I officials was uncalled for, They pointed out that Dte. of I & I had an enviable record as is evident from the fact that out of ten Complaints investigated by the FTO involving the issue of I&I jurisdiction to conduct enquiries against taxpayers, eight had been decided in favour of I&I/Deptt and two were yet pending decision.

6.The Complainant's Review Petition No.05/2016 seeks cognizance under the provisions of FTO Ordinance, 2000 on the following assertions:--

(a)alleged defamation / vilification of Complainant due to alleged deliberate release of sensitive information available in a confidential I&I report regarding the Complainant by Mr. Omar Mahmood Butt, Asstt. Director I&I, Lahore, cited in the review petition as respondent No.2;

(b)alleged Dept'l failure to file counter affidavits by all respondents on 27.10.2015, on which date the investigation proceedings allegedly stood closed. This alleged lapse is stated to be fatal to the Dept'l stance and the contents of the uncontroverted affidavit filed by Complainant, therefore, according to Complainant, stand confirmed;

(c)belated filing of counter affidavits by Dept'l respondents Nos. 2, 3 and 5 (as cited in amended Complaint) and non filing of counter affidavit by Dept'l respondent No.4 is seen as a fatal, incurable defect by the AR;

(d)observations by FTO in his order dated 17.12.2015 pertaining to I&I jurisdiction when the Dealing Officer had statedly stopped both sides from making any reference to I&I jurisdiction under section 230 of the Income Tax Ordinance, 2001 (the Ordinance) read with S.R.Os. 351(I)/2014 and 115(I)/2015;

(e)observations made by FTO in his order dated 17.12.2015 regarding import of Supreme Court of Pakistan Judgment dated 02-11-2015 refusing leave to appeal in Civil Petitions Nos.2366, 2412, 2413, 2414, 2550 and 2551 of 2015, against PHC Judgment dated 07.05.2015. The Complainant contends that the FTO in his order dated 17.12.2015 could not refer to the Apex Court Judgment 02.11.2015 as investigation proceedings stood closed on 27.10.2015.

(f)alleged Dept'l "implied admission" that the FTO had rightly asked Chairman FBR to conduct enquiry regarding leakage of sensitive information pertaining to Complainant;

(g)the fact that the respondents are all government functionaries and it was not feasible for Complainant to invoke the provisions of the Defamation Ordinance, 2003 in their case as suggested by Deptt. in its reply on the Complainant's review petition;

(h)the fact that Complainant had contested the "conduct" of I & I functionaries, as envisaged in section 9 of the FTO Ordinance, not taxation per se, as reflected in the processes employed by them during the course of their investigation and this was not properly reflected in the FTO order disposing of the Complaint;

(i)the fact that Deptt's persistent reference to the provisions of section 9(2)(a) of the FTO Ordinance was misconceived. This was because the Complainant had made it clear that various Writ Petitions filed by him before the Lahore High Court sought only to contest the vires of Notices issued under section 176 of the Ordinance in the context of audit selection;

As a result of the alleged multiple defects/deficiencies in the Dept'l stance, especially that of respondent No.4, Mr. Omar Mahmood Butt, cited as the respondent directly involved in leakage of confidential and sensitive information pertaining to the Complainant, desires that a finding of maladministration be recorded by the FTO against respondents especially respondent No.4.

7.Both sides have referred to case law and have made written arguments in support of their respective positions. AR of Complainant and DRs have also made detailed oral submissions.

8.The Dept'l objective in review is the expunction of remarks made by FTO perceived as contradictory to his main finding that Dept'l maladministration was not evident. Thus, the FTOs reference, in pars-8 of the impugned order, to "unbridled powers of I&I" is seen as an unnecessary statement that conflicts with his findings, in para 6 of the order, that:--

"The officers of the Directorate of I & I were, therefore, legally justified to conduct enquiry and issue notice under the provisions of section 230 of the Ordinance read with S.R.O. No.115(I)/2015 dated 09.02.2015."

Furthermore, the FTO's direction to the Chairman FBR, in para-7 of his order, to conduct enquiry to determine as to who was responsible for the alleged leakage of confidential information, is also seen as unwarranted and for the same reason. It is emphasized by the Deptt that these remarks had a negative connotation and had been exploited by the Complainant in his review petition to the detriment of the Deptt by arguing that the FTO had in fact drawn attention to features that highlighted maladministration inherent in I&I work processes. In their oral deposition the DRs stated that Deptt would be satisfied if the above referred remarks/direction to Chairman FBR were expunged.

9.The Complainant's stance in review is much more complex and wide ranging and his arguments cover a significantly enlarged canvas He has launched a multi-faceted attack on the FTO's order dated 17.12.2015 to establish that the FTO either ignored vital feature(s) in his Complaint or drew wrong conclusions in his analysis.

10.The alleged leakage of confidential information pertaining to Complainant is statedly a pivotal feature in the Complaint. Mr. Omar Mahmood Butt, Asstt Director I&I, Lahore is allegedly directly responsible for the same as the confidential document reportedly remained in his custody and only he was in a position to make the unauthorized and mala fide disclosure that was statedly grossly detrimental to Complainant's reputation and business.

11.In matter pertaining to filing of counter affidavits by respondents the Complainant is of the view that in his order dated 17.12.2015, the FTO had not taken cognizance of the fact that the respondents submitted counter affidavits on 28.10.2015 i.e. after the investigation proceedings had statedly closed on 27.10.2015 and the cut-off date, 27.10.2015, as specified in notice dated 13.10.2015, issued by Registrar, FTO Sectt, Islamabad had expired. A copy of the said notice was submitted by the AR during his oral deposition and the same bore the notation, "No further adjournment will be allowed." In the Complainant's view this alleged lapse on the Deptt's part was fatal to their stance but the FTO ignored this statedly crucial aspect in his order dated 17.12.2015. FTO had also statedly ignored the fact that one of the respondents, Mr. Omar Mahmood Butt, Asstt. Director I&I, Lahore, did not file any counter affidavit on Complainant's sworn stance. It is the Complainant's contention that failure to file counter affidavit by respondent No.4 can only mean that the Complainant's stance in the matter stands confirmed (case law cited by AR as 2012 SCMR 123; 2007-CLC-124; 2009 YLR 1508; 2011 YLR 2452; 2012 YLR 1580; 2013 MLD 1759; 2006 CLD 79). The Deptt now, according to the Complainant, had no locus-standi regarding their stated position on the I&I investigation proceedings against him.

12.It is also the Complainant's contention that the FTO statedly ignored the fact that the Dealing Officer expressly forbade both sides from raising the jurisdiction issue (Section 230 of Income Tax Ordinance 2001 read with S.R.O. 351(I)/2014 and S.R.O. 115(I)/2015 - Notices issued under section 176 of the Income Tax Ordinance, 2001). The Dealing Officer was of the view that the same was sub judice before the LHC in writ petitions filed by Complainant. According to the Complainant, notwithstanding this alleged ground reality, the FTO had commented on this issue in his order in a manner that was detrimental to the Complainant and this alleged lapse also needed to be rectified in review.

13.Regarding S.R.O. 115 the AR of Complainant further contended that this S.R.O. was issued in February 2015 and could not be applied retrospectively to enquire into Complainant's tax affairs in Tax Years 2011 to 2013 as statedly done by I&I. The AR argued that it was trite law that law as laid down on the 1st day of the tax year was applicable when determining the total income of a taxpayer, not the law as it stood, after amendments etc in a subsequent year. The AR referred to the Eli Lily case (2009 PTD 1392) in this context.

14.In matter pertaining to Complainant's alleged defamation the Complainant was dismissive of the Dept'l viewpoint statedly endorsed by the FTO in his order dated 17.12.2015 that the Complainant could have taken up the defamation grievance by filing Defamation Suit in a Court of Law. The Complainant stated that he had been defamed by persons who are Government / Public functionaries and the FTO was the only forum where he could lodge his complaint. He states that the FTO erred here as well. Additionally, the AR stated that the review petition is not against taxation of Complainant's income per se. Rather, it is against the conduct of I&I functionaries. Repeated issuance of statutory notices and leakage of confidential information placed in their custody was tantamount to maladministration as defined in section 2(3) of the FTO Ordinance and therefore, according to the Complainant, actionable before the FTO only.

15.In the case of journalist Mehtab Haider's statement that no I&I official was involved in making available to him the confidential report extracts wherefrom were published in the print media, the AR stated that the statement had no value as it was obvious that he was colluding with the Deptt. He said that, quite implausibly, the reply came back the same day Mehtab Haider, had received the letter/query from the then DG I and I, (Mr. Haroon Khan Tareen). It appeared that Mr Haider was waiting, fully prepared to respond to the I&I query in a predetermined manner as soon as it was received. He said that the journalist's alacrity betrayed an unwanted eagerness on his part to please the DG I&I.

16.Finally, the Complainant was of the view that the Officer assisting the FTO erred in his view that the subject matter of the writ petitions filed in the LHC was the same as the Complaint filed before the FTO that was unable to tender proper advice to the FTO.

17.The DRs responded to the AR's submissions referred to supra. The DRs denied emphatically that all proceedings in the case had come to a close on 27.10.2016. He referred to Regulations-14, 15, 2(1)(b), 2(1)(g) to say that the final disposal of a complaint took place when ALL proceedings germane to the Complaint under investigation stood completed. The filing of counter affidavits is thus to be seen as part of these proceedings. He stated that the FTO finalized the investigation proceedings on 17.12.2015 when he passed the final order disposing of the Complaint. The DRs also stated that so long as the Deptt. categorically denied the Complainant's contention, and the same was borne out by the available written material on the record of the case, the Deptt's denial stood established even if no counter affidavit was filed. In this context he referred to case law cited as 2013-PLC-934 (SC-AJK).

18.As for the alleged premature reference by FTO in his order dated 17.12.2015 to Supreme Court Judgment dated 02.11.2015 the D.Rs. averred that as stated in the context of filing of counter affidavits, the investigation proceedings continued till the date that the order was finally passed by the FTO. They stated that the FTO was obliged to take cognizance of the Supreme Court Judgment dated 02.11.2015 as it was announced during the pendency of the investigation and had a direct bearing on the investigation underway in the present Complaint. The FTO could not ignore the Judgment and in this context, DRs drew attention to Article 189 of the Constitution of the Islamic Republic of Pakistan. The DRs further pointed out that the Deptt had no-where referred specifically to the Supreme Court Judgment dated 02.11.2015 in their written submissions before the FTO. When he was finalizing the order dated 17.12.2015 disposing of the Complaint, the FTO, on his own, took cognizance of the Supreme Court's Judgment dated 02.11.2015 that in effect confirmed the PHC Judgment dated 05.07.2015.

19.The DRs rebutted Complainant's contention that Mr. Omar Mahmood Butt, Asstt. Director I&I was mainly responsible for the leakage of confidential report pertaining to the Complainant. They argued that this allegation had been made by the Complainant for the first time in the review petition - not in the original Complaint. They pointed out that Mr. Omar Mahmood Butt was entrusted with the investigation on 05.03.2015 while the alleged leak took place on 18.02.2015 or thereabouts. As for excerpts appearing in the print media on 27th and 28th Feb. 2015, the alleged 'leakage' thus clearly pre-dates entrusting Mr. Omar Mahmood Butt the Complainant's investigation. The D.Rs. explained that the main purpose of the enquiry report was to make recommendations regarding those Dept'l employees who were complicit with the Complainant in placing on the Deptt's record, back dated returns of income/wealth statements etc. The purpose of the enquiry thus was not to defame the Complainant. Here the D.Rs. posed the question as to whether any legal action was taken against the journalists/media outlets in which the enquiry report excerpts were published. Since no such action was ever taken, they opined that this was not done because the Complainant was well aware that no scheme had in fact been devised to defame or vilify him. The D.Rs. stated that the Complainant was well aware of the disciplinary proceedings taken against these delinquent employees as was evident from the Complainants review petition, pages 27-28 thereof. Major penalty was imposed on them and they were dismissed from service on 30.10.2015. They further stated that the sequence of events make it all too evident that Mr. Omar Mahmood Butt could not have had anything to do with the leakage of the confidential enquiry report and that the enquiry had a purpose quite different from that imagined by the Complainant.

20.The DRs went on to say that defamation did not fall within the purview of the FTO as held in Judgment cited as 1996-MLD-2002 (SC-AJK). They contended that if it was indeed the Complainant's objective to seek restitution for defamation suffered at the hands of I&I officials, especially Mr. Omar Mahmood Butt, he ought to have made recourse to the civil courts and filed suit for defamation, which he did not do.

21.With regard to Jurisdiction issue, the D.Rs. contended that it is the Complainant who raised the Jurisdiction issue, first in the Complaint and then again in the review petition. This was done after filing writ petitions in the High Court to contest the efficacy of S.R.Os. 351/2014 and 115/2015, following the alleged suspension of S.R.O. 351 and the issuance of notices by the Deptt. in the period when S.R.O. 351 allegedly stood suspended and S.R.O. 115 had not been notified. The D.Rs. further contended in their rebuttal that the AR had argued the review petition in a manner as to suggest that the entire case was being re-heard afresh. They pointed out that review proceedings were not akin to Appeal or a re-hearing of the case and the FTO had only restricted jurisdiction in review confined to remedial action for any mistakes or omission appearing in the original order found floating on the surface of the relevant record and therefore readily discernible. They referred to Judgments cited as 1969-SCMR-247 and 2014-SCMR-1858. The D.Rs. stated finally that journalist Mehtab Haider having affirmed unequivocally that he had not received the published excerpts from the I&I ought to have put an end to the defamation charges leveled by Complainant instead of doubting his conduct on the basis of surmises without any evidence

22.The points of view of Applicant(s) and Respondent(s), as the case may be, noted and written arguments/oral deposition considered, cited case law perused and available record examined.

23.In the case of the Dept'l review petition, seen holistically and in proper context, it is clear that the FTO's remark regarding "unbridled powers of I&I" and direction given to Chairman FBR to conduct enquiry in order to determine who was responsible for leakage of confidential information, if any, do not countermand FTO's unequivocal finding, in para-6 of FTO order dated 17.12.2015 recorded before the cited remarks appear in the Order.

". . . The Complainant's contention that enquiry/investigation carried out by the Directorate of I & I and issuance of notices by them were out of jurisdiction, has not been found to be legally correct."

". . . The officers of the Directorate of I & I were, therefore, legally justified to conduct enquiry and issue notice under the provisions of section 230 of the Ordinance read with S.R.O. No.115(I)2015 dated 09.02.2015."

Be that as it may, the FTO, evidently by way of abundant caution, has left the door open to be able to take cognizance of any Dept'l wrong doing that might come to light at any stage by way of deliberate leakage of confidential information pertaining to the Complainant by I&I personnel. Similarly, should at any stage I&I be found to be lacking in internal check and balance ("unbridled powers") it ought to be possible to address that deficiency too. The corrective action is clearly contingent to conclusive identification of person(s) responsible for the alleged leakage of confidential information pertaining to Complainant or powers available to I&I for which there was no oversight mechanism. The fact that the Complainant might be trying to exploit these remarks in his review petition is not sufficient justification to warrant their expunction. After all, this is what litigants do all the time exploit what they perceive to be their adversaries weakness or oversight. So the Dept'l review petition does not establish any readily discernible defect in the order dated 17.12.2015 so far as the Findings/Recommendations pertaining to the Deptt are concerned that might warrant remedial action in review.

24.As regards the Complainant's review petition, considering the diversity of issues raised including specific reference to Mr. Omar Mehmood Butt, Asstt. Director I&I, Lahore for the first time in the review petition as primarily responsible for the leakage of sensitive information pertaining to Complainant and reiteration during review proceedings of arguments adduced when the Complaint was investigated, it is evident that the Complainant has made a concerted effort to re-argue the entire case put forward in the original Complaint. He has introduced new issues not raised in the Complaint such as the alleged pivotal role of Mr. Omar Mahmood Butt in leaking confidential information. This is not permissible in law, as held in reported Supreme Court of Pakistan Judgment, 1997 PLD SC 865 (867), extract where-from is reproduced hereunder:--

"Review proceedings cannot partake re-hearing of a decided case. Therefore, if the Court has taken a conscious and deliberate decision on a point of law or fact while disposing of a petition or appeal, review of such Judgment or order cannot be obtained on the ground that the Court took an erroneous view or that another view on reconsideration is possible. Review also cannot be allowed on the ground of discovery of some new material, if such material was available at the time of hearing of appeal or petition but not produced. A ground not urged or raised at the hearing of a petition or appeal cannot be allowed to be raised in review proceedings. Such errors in the Judgment/order would justify review, which are self-evident, found floating on the surface, are discoverable without much deliberation, and have a material bearing on the final outcome of the case." [emphasis supplied]

Other relevant judgments in this regard include 2014 SCMR-1858; 2011-CLC-939 (LHC); 2016-CLC-10 (PHC)

25.Not only has the Complainant reargued his case as put forward in the complaint, the arguments made at the review stage are not plausible. Thus in the case of counter affidavits filed by respondents, the Complainant is wholly mistaken in his view that the counter affidavits having been filed on 28,10.2015 and not on 27.10.2015 suffer from a fatal defect because the investigation proceedings statedly stood closed on 27.10.2015. He has failed to take cognizance of the fact that the counter affidavits were filed by respondent's not of their own volition but pursuant to the Dealing Officer's express direction in this regard. The Dealing Officer had asked them on 27.10.2015 to file the counter affidavits and they were filed the next day after purchasing stamp paper on 27.10.2015 and when two of the respondents were posted in I&I Lahore. As for non- filing of counter affidavit by respondent No.4, Mr. Omar Mahmood Butt, (identified by Complainant as the main culprit involved in leakage of sensitive information pertaining to him), he clearly could not have filed affidavit as he had been entrusted with Complainant's investigation on 05.03.2015, after the alleged leakage had taken place. Logically, therefore, Mr. Omar Mahmood Butt could not be expected to file counter affidavit regarding events in which he played no role.

26.As for the 'jurisdiction issue' referred to by Complainant, here the Complainant has completely failed to lead any evidence to establish that S.R.O. 351(I)/2014 had ever been suspended by FBR. That being so, it follows that S.R.O. 115(I)/2015 succeeded S.R.O. 351(I)/2014 and there was no unexplained gap between end of one SRO and start of the other. There was thus no legal defect in the exercise of jurisdiction by I&I so far as the issuance of notices was concerned. As for the Dealing Officer's stated direction to the parties not to discuss the jurisdiction issue during the investigation proceedings, the fact of the matter is that the Complainant had already stated his position on the matter in the Complaint. When the FTO finalized the proceedings by passing order disposing of the Complaint on 17.12.2015, he took cognizance of the material on record and considered it fit to decide the issue put forward by Complaint by making appropriate comment thereon.

27.Reference to Supreme Court Judgment dated 02.11.2015 by the FTO in his order dated 17.12.2015 is perfectly in order notwithstanding the fact that the last investigation hearing was conducted by the Dealing Officer on 27.10.2015. Indeed, as the FTO passed order to dispose of Complaint on 17.12.2015, he was required to take cognizance of the Supreme Court Judgment dated 02.11.2015 as it was germane to the issues placed before him in the Complainant and could not have been ignored by him on the ground that the last hearing in the case was held on 27.10.2015 when the Supreme Court Judgment was not available. The PHC having made a legal determination vide its Judgment dated 02.07.2015 that the I & I was properly constituted under the law and the Supreme Court having refused to allow leave to appeal against that Judgment, the FTO was bound to follow the PHC Judgment.

28.The fact that the Deptt had written "DENIED" in his comments on Complainants observation regarding legal and other defects in the order dated 17.12.2015, by no means mandates the unconditional acceptance of what the Complainant has stated in the Complaint. The record of the case makes it abundantly clear that the Deptt had throughout the investigation proceedings emphatically denied Complainants contention in-toto and that denial is conclusive.

29.FTO's observation in his order dated 17.12.2015 that:--

"In case the Complainant and its directors had felt that their honour/dignity was tarnished they could have followed proper recourse by filing defamation suit in a Court of law. No such action has been taken at the relevant/proper time."

is consistent with the statutory position regarding recourse for 'defamation' and for which the law has been laid down in the Defamation Ordinance, 2003 which is not referred to under "Relevant Legislation" in section in 2(6) of the FTO Ordinance. The legislature has thus consciously excluded "defamation" from the purview of the FTO. The fact that only a 'Court' could determine damages to be awarded in a case in which a person has suffered mental agony and humiliation/insult/defamation is borne out from Supreme Court Judgment cited as 2013-SCMR-507. It thus follows that there was no mistake in the order dated 17.12.2015 regarding proper recourse for defamation under the law.

30.Complainants contention that S.R.O. 115(I)/2015 authorizes the I&I to conduct enquiries in cases of taxpayers involving tax year 2015 and beyond is misconceived. I&I, since its inception, has been authorized to conduct such enquiries. S.R.O. 115 succeeds S.R.O. 351 and as explained supra there is no gap between the two and both the S.R.O. empower I&I to conduct enquiries and I&I has always been so empowered. Needless to say, the law to be applied when the RTO finalizes an assessment order on the basis of report sent by I&I will be the law as it stood on the statute in the relevant tax year. There is no cavil with this proposition.

31.From the observations recorded supra, it is all too evident that the Complainant desires that the FTO's findings in his order dated 17.12.2015, (that no maladministration was discernible in the investigations being carried out in his case by I&I), be changed. The RP is clearly an attempt to get the findings reversed to one that affirms maladministration in the conduct of I&I functionaries entrusted with his case, especially respondent No.4, Mr. Omar Mahmood Butt. The increase in the number of respondents from three in the original complaint to five in the amended Complaint and the review petition has been made to rope in Mr. Omar Mahmood Butt as the main I&I official allegedly involved in a scheme to defame and vilify the Complainant.

32.After a careful evaluation of the submissions made by the two sides, it has not been established by either side (Complainant or Deptt) that there was any readily discernible mistake floating on the surface of the order dated 17.12.2015 disposing of Complaint No.ISD/648/2015 that was open to remedial action in review. Additionally, as explained supra, Complainant has endeavored to re-argue his case afresh which is not permissible in review. He has also increased the number of respondents from three in the original Complaint, to five in the amended Complaint and the review petition. This is highly irregular. He has leveled allegation against Mr. Omar Mahmood Butt Asstt, Director I&I, LHE of deliberately leaking sensitive confidential information pertaining to the Complainant for the first time in review. This too violates the parameters laid down in various Judgments on the subject by the Superior Judiciary including Supreme Court Judgment referred to as 1997 PLD SC 865 (867).

33.For all these reasons, Review Petitions 03/2016 and 05/2016 filed by Deptt. and Complainant respectively, are hereby rejected.

KMZ/40/FTOReview rejected.