CHINA HARBOUR ENGINEERING COMPANY LTD. VS FEDERATION OF PAKISTAN through Secretary, Ministry of Finance and Economic Affairs, 2016 PTD-KARACHI-HIGH-COURT-SINDH 2679 (2015)

Income Tax Ordinance (XLIX of 2001)---

----Ss. 152, 153, 122A & 122B---Payments to non-residents---Exemption from withholding of tax provided in Ss. 152 & 153 of the Income Tax Ordinance, 2001---Petitioner/taxpayer impugned withdrawal of exemption from withholding of tax granted to it by the Department in terms of Ss. 152 & 153 of the Income Tax Ordinance, 2001---Validity---High Court disposed of the Constitutional petition with consent of parties, by directing the petitioner to seek remedy as may be available by filing of revision under S. 122A or S. 122B of the Income Tax Ordinance, 2001 before the Commissioner within ten days whereafter the Commissioner was directed to pass a speaking order after providing opportunity of hearing to the petitioner---High Court further held that the petitioner was at liberty to approach the concerned Commissioner for seeking exemption under S. 153(4) of the Income Tax Ordinance, 2001 upon which the Commissioner was to pass a speaking order after providing an opportunity of hearing to the petitioner---High Court also directed the Department not to draw any adverse inference against the petitioner till disposal of said revision to be filed by the petitioner or claim of exemption to be filed by the petitioner---Constitutional petition was disposed of, accordingly.

Malik Naeem Iqbal for Petitioner.

S. Irshad-ur-Rehman for Respondent.

Azizullah Buriro, DAG.

Zulfiquar Ali Memon, Additional Commissioner, Zone-III, LTU, Karachi.

ORDER

After arguing the matter at some length, learned counsel for the petitioner submits that the petitioner, will not press instant petition and will avail the remedy against the impugned order dated 17.12.2014, whereby, exemption earlier granted to the petitioner from withholding of tax under section 152 of the Income Tax Ordinance, 2001, has been withdrawn by the Commissioner Inland Revenue, by filing a Revision in terms of section 122 A of the Income Tax Ordinance, 2001, whereas, the petitioner will also file a representation before the concerned Commissioner seeking similar exemption in terms of section 153(4) of the Ordinance, 2001 pursuant to the treaty between Pakistan and China. However, it has been prayed by the learned counsel that the respondents may be directed to pass appropriate order thereon, after providing opportunity of being heard to the petitioner within a reasonable time, and till then, respondents may be restrained from taking any adverse action against the petitioner pursuant to impugned withdrawal of the exemption by the Commissioner, IR.

Learned counsel for the respondents duly assisted by the Additional Commissioner, Zone-III, LTU, Karachi, does not oppose the disposal of the instant petition in the aforesaid terms.

Accordingly, by consent, instant petition is being disposed of with the directions to the petitioner to seek remedy as may be available under law including by filing Revision under section 122-A or section 122-B of the Income Tax Ordinance, 2001 before the, Commissioner or Chief Commissioner, IR as the case may be, within ten (10) days from the date of this order, whereafter, the Commissioner/ Chief Commissioner, IR shall pass speaking order after providing opportunity of being heard to the petitioner within two weeks from the date of hearing, to the petitioner. The petitioner is also at liberty to approach the concerned Commissioner Inland Revenue seeking exemption under section 153(4) of the Ordinance, 2001, within ten days from the date of this order, whereafter, Commissioner shall also pass a speaking order within two weeks from the date of hearing, after providing opportunity of being heard to the petitioner. However, in the meanwhile, the respondents shall not draw any adverse inference pursuant to withdrawal of exemption through impugned order dated 17.12.2014 till disposal of such Revision or claim of exemption by the Commissioner IR.

Petition stands disposed of in the above terms along with listed application.

KMZ/C-7/SindhOrder accordingly.