COMMISSIONER OF INCOME TAX VS FRESH JUICES LTD., 2016 PTD-LAHORE-HIGH-COURT-LAHORE 1093 (2015)

(a) Finance Act (XII of 1991)---

----S.12(10)---Wealth Tax Act (XV of 1963), S.27---Corporate Asset Tax---Appeal, revision or rectification---Scope---Interpretation of S.12(10) of the Finance Act, 1991---Perusal of S.12(10) of Finance Act, 1991 showed that provisions of Wealth Tax Act, 1963 were borrowed and applied for purpose of providing appeal, revision or rectification under said section---Said sections would be read in S.12(10) of Finance Act, 1991 which were specifically borrowed---Appeal could not be claimed as a right unless provided by statute---Language of S.12(10) of Finance Act, 1991 suggested that omission of S.27 of Wealth Tax Act, 1963 while mentioning other sections of the Wealth Tax Act, 1963 was deliberate---Legislature had intentionally omitted to mention S.27 of Wealth Tax Act, 1963 in S.10(12) of Finance Act, 1991---Corporate Asset Tax was therefore, one time levy and legislature had put an end to litigation up till Appellate Tribunal level.

Sheikh Muhammad Usman v. Learned Judge Banking Court No.1, and another 2015 CLD 257 and Malik Umar Aslam v. Mrs. Sumaira Aslam and others 2014 SCMR 45 rel.

(b) Appeal (civil)---

----Scope---Appeal was not a natural or an inherent right of litigant but was a statutory right granted by law---Right of appeal could only be availed if the same was granted by law.

Mughal Surgical (Pvt.) Ltd. and others v. Presiding Officer, Punjab Labour Court No.7 and others 2006 SCMR 590 and Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94 rel.

Shahid Sarwar Chahal and Malik Asad on behalf of Muhammad Ilyas Khan along with Dr. Ishtiaq Ahmad Khan, Additional Commissioner Inland Revenue, LTU, Lahore for Applicant.

Zulfiqar Khan, Rasheed Ahmad Sh. and Maqsood Ahmad for Respondents.

ORDER

In this appeal along with connected W.T.A. No.32 of 2004 and P.T.R. No.81 of 2004 filed under Section 27 of the Repealed Wealth Tax Act, 1963 ("Act of 1963"), a preliminary objection regarding maintainability of the appeals is raised by respondent's side.

2.It is argued that appeal against an order by erstwhile Income Tax Appellate Tribunal ("Appellate Tribunal") is not provided under subsection (10) of Section 12 of the Finance Act, 1991 ("Corporate Assets Tax"). Reliance is placed on recent judgment by this Court in Sheikh Muhammad Usman v. Learned Judge Banking Court No.1, and another (2015 CLD 257).

3.Learned counsel for the appellant assisted by Dr. Ishtiaq Ahmad Khan, Additional Commissioner Inland Revenue, LTU, Lahore submit that after mentioning section 24 in subsection (10) of section 12 there was no need to write section 27 of the Act of 1963 also because language of section 27 is very clear that appeal lies against an order under section 24 of the Act of 1963 by the Appellate Tribunal.

4.Subsection (10) of Section 12 of Finance Act, 1991 is reproduced hereunder:--

"12 Corporate Assets Tax.

(10) The provisions of sections 23, 24, 25 and 35 of the Wealth Tax Act, 1963 (XV of 1963), shall, so far as may be, apply to an appeal against, or revision or rectification of, an order under this section as they apply to an appeal, revision or rectification under the said Act".

Perusal of subsection shows that provisions of Wealth Tax are borrowed and applied for the purpose of providing appeal, revision or rectification under this subsection, therefore, only these sections would be read in the subsection, which are specifically borrowed. It is un-deniably, settled legal position that appeal cannot be claimed as a right unless provided by the statute. Language of subsection (10) suggests that omission of Section 27, while mentioning other sections of the Act of 1963 is deliberate. The judgment in Sheikh Muhammad Usman case (supra), relied upon by respondent's side, is relevant, which is based on principle enshrined by the Hon'ble Supreme Court of Pakistan. Relevant part of the judgment is reproduced hereunder:--

"The perusal of subsection (6) takes us to the conclusion that where the statute has not provided appeal against an order then the same cannot be challenged by way of constitutional petition as any such allowance would amount to negating the provisions of the statute. We are fortified in our mind by the judgment of the Hon'ble Supreme Court of Pakistan reported as Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another (1996 SCMR 1165) wherein the Hon'ble Supreme Court of Pakistan has held that where a statute exclude a right of appeal, the same could not be by passed by bringing it under attack in constitutional jurisdiction. The Hon'ble Supreme Court of Pakistan in a judgment reported as Federation of Pakistan and another v. Malik Ghulam Mustafa Khar (PLD 1989 Supreme Court 26) has held that if the language used in the statute is such that it leaves no room for doubt as to intention of the legislature, then the intent of the legislature will have to be given effect and even acts performed without jurisdiction or mala fides will not be open to judicial scrutiny."

5.Hon'ble Supreme Court of Pakistan in its judgment Mughal Surgical (Pvt.) Ltd. and others v. Presiding Officer, Punjab Labour Court No.7 and others (2006 SCMR 590) has held that appeal is not a natural or an inherent right of litigants, but is a statutory right granted by different laws by different enactments. In Muzaffar Ali v. Muhammad Shafi (PLD 1981 SC 94) it is held that right of appeal can only be availed if it is granted by law.

In a recent judgment Malik Umar Aslam v. Mrs. Sumaira Aslam and others (2014 SCMR 45), the Apex Court has re-emphasis the principle saying, "appeal is a statutory right that can only be exercised if Statute has provided so as a matter of right. It is reiterated that the legislature had intentionally omitted to mention Section 27 of Wealth Tax Act, 1963, in subsection (10) of Section 12 of Finance Act, 1991. Corporate Asset Tax was one time levy and legislature had put an end to the litigation uptill Appellate Tribunal's level.

6.The objection raised by respondent's side is upheld and this appeal along with W.T.A. No.32/2004 and P.T.R. 81 of 2004 are dismissed being not maintainable.

7.Office shall send a copy of this order under seal of the Court to the Appellate Tribunal Inland Revenue as per Section 27(5) of the Repealed Wealth Tax Act, 1963.

RR/C-23/LOrder accordingly.