QALANDAR ALI KHAN, J.---The petitioner, Sardar Ahmad Qureshi, has assailed notice of the Excise & Taxation Officer/Collector, Abbottabad (respondent No_ 1) through the present writ petition, thereby seeking annulment of the impugned notice on the ground of the same being illegal, without jurisdiction and without lawful authority. In his writ petition, the petitioner claimed that he was already paying professional tax regularly to the Cantonment Board, Abbottabad (respondent No, 3) in respect of his clinical laboratory known as "United Laboratory". He asserted that the laboratory, was situated in the territorial limits of Cantonment Board, therefore, he was regularly paying professional tax to the Cantonment Board i.e, respondent No, 3; but respondent No, I issued the impugned notice thereby asking him to pay the amount of Rs, 188,625/- on account of arrears of professional tax, and also immediately sealed the laboratory on 28.01.2012, without any legal justification, thereby causing him heavy loss in business and goodwill, together with damage to the clinical equipment present in the laboratory and loss of business on daily basis. The petitioner maintained that he was not liable to pay the same tax to two departments at the same time.
2. In his comments, Cantonment Executive Officer, Abbottabad i.e, respondent No, 3 squarely supported case of the petitioner, mainly, on the ground that it was the sole prerogative of respondent No, 3 to impose any tax in Cantonment Area with the sanctioned approval of Federal Government as provided under the Cantonments Act, 1924.
3. The Excise & Taxation Officer, Abbottabad i.e, respondent No, 1, on the other hand, resisted the petition on several grounds, including the plea that the United Laboratory may be situated in the limits of Cantonment Abbottabad at the same time is situated within the province and therefore liable to pay the professional tax to the provincial government and that laws enacted by the Provincial Government under Article 163 of Constitution of Islamic Republic of Pakistan, 1973 have precedence over local authority. The respondent contended that the notice was issued to the petitioner under the Finance Act, 1990 but the petitioner did not comply with notice for payment of the professional tax, therefore, as a last resort, the laboratory was sealed. The respondent stressed that provision of Section 60 of the Cantonments Act, 1924 is subservient to the Constitution of Islamic Republic of Pakistan, 1973.
4. During their arguments, learned counsel for the petitioner and respondent No, 3 referred to section 60 of the Cantonments Act, 1924, whereby general power of taxation has been conferred upon the Cantonment Board. In this connection they also referred to a letter by Executive Officer, Cantonment Board, Abbottabad to the Excise and Taxation Officer, Abbottabad in October, 2006 whereby the latter was informed about the right of the Cantonment Board, Abbottabad to collect professional tax from the area. They also referred to 2002 CLC 1116 (Lahore) whereby levy of professional tax by a province or by local authority on a corporation was held constitutionally not permissible.
' The learned Standing Counsel for respondent No, I argued that the Cantonment Board, in the first place, had no authority to impose such-like tax which has been tested in the provincial assembly through Article 163 of the Constitution of the Islamic Republic of Pakistan, 1973; in pursuance whereof Finance Act, 1990 (Khyber Pakhtunkhwa Act No, IV of 1990) was promulgated, thereby levying tax on professions, trades and callings, including tax amounting to Rs, 12,000/- for each financial year on pathological and chemical laboratories, like the present one, located at divisional headquarter. The learned Standing Counsel further contended that notwithstanding the fact that there was no legal provision authorizing the Cantonment Board to collect professional tax, but even in case of existence of any provision in the Cantonments Act, 1924, the provision of Article 163, providing for levying of the professional tax, in view of the judgment of august Supreme Court of Pakistan reported as PLD 2006 SC 697 shall prevail. The learned counsel maintained that it has been held in unequivocal terms that in case of such conflict, Constitution shall reign over all laws of land being a superior legislation.
5. In essence, case of the petitioner is that while he is already paying professional tax to the Cantonment Board, he is not liable to pay professional tax to the provincial government as well. No doubt, the United Laboratory is situated in the territorial limits of Cantonment Board, Abbottabad; but, nevertheless, Cantonment Board, Abbottabad, is situated in the Province of Khyber Pakhtunkhwa and, as such, the tax levied under Khyber Pakhtunkhwa Finance Act, 1990 will be applicable to the petitioner in respect of his laboratory. Needless to say that the tax has not been levied on the property i.e, laboratory, situated in the limits of Cantonment Board, rather on the petitioner/proprietor of the laboratory.
6. The judgment reported as 2002 CLC 116 (Lahore), relied upon by the learned counsel for the petitioner and respondent No, 3, cannot come to the rescue of the petitioner for the simple reason that the cited judgment relates to the levy of professional tax by Province or by local authority on a corporation, which was Constitutionally not permissible by virtue of item No, 48 in the Federal legislative list of Fourth Schedule of the Constitution, where-under only the Federal government could levy the professional tax on a corporation; whereas, the tax in question has been levied on persons engaged in professions, trades, callings or employments.
7. Apart from the above, the Professional Tax Rules, notified by the Government of Khyber Pakhtunkhwa on 04.02.1991 (hereinafter referred to as `Rules'), provide for a mechanism for determination of all questions regarding liability of a person to a tax, the amount of tax recoverable and other related matters. Rule 6 of the Rules confer exclusive authority on the District Excise & Taxation Officer to determine all the questions mentioned above, and Rule 7 of the Rules provide for appeal to the Collector by an aggrieved person against order of District Excise & Taxation Officer made under Rule 6 or any notice issued under Rule 5. Likewise, Rule 8 confer authority of revision on the Boardmf Revenue.
8. The provisions, referred to above, would show that the remedy of appeal as well as revision was available to the petitioner, therefore, he could not invoke the writ jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
9. Consequently, the writ petition is accordingly dismissed as not maintainable. However, the petitioner may approach the competent authority under the Rules within a period of thirty days; and in the meantime, for the said period, order of this Court dated 8.2.2012 in regard to the sealing/ desealing of the premises by respondent No, I shall remain operative.
Writ as Not Maintainable.