M. Tabassum Aftab Alvi, J. The Captioned writ petitions have been addressed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
2. As common questions of facts and law are involved in the instant writ petitions, therefore, we proposed to decide the same through this single judgment.
3. The precise facts culminating into filing of Writ Petition No, 2075/2016 are that petitioner, Daelime Lotte, is a joint venture of two non-resident corporate entities, which has been engaged by Mira Power Limited for construction of 102 Megawatt Gulpur Hydropower Project at Kotli. The Respondent No, 2, Inland Revenue Officer (Companies) Mirpur, passed an order on 26.04.2016, under Section 162 of Income Tax Ordinance, 2001, and directed petitioner to deposit Rs, 37,701,619/- on account of Income Tax & Education Cess. It is claim of petitioner that Respondent No 2, unlawfully held that petitioner was eliable to pay withholding tax under Section 152 (2A) instead of Section 152(1A) of Income Tax Ordinance, 2001. The Respondent No, 2, Inland Revenue Officer, vide notice dated 23.05.2016, issued under Section 138(1) of Income Tax Ordinance, 2001, directed petitioner to pay the above mentioned amount till 30.05.2016, failing which recovery proceedings were to be initiated.
Against the aforesaid order petitioner filed an appeal before Commissioner Inland Revenue (Appeals), Respondent No, 1, which after hearing was dismissed vide impugned order dated 26.04.2016. Feeling dissatisfied from the above order, petitioner filed an appeal before Azad Jammu & Kashmir Council Appellate Tribunal Inland Revenue, Muzaffarabad, which is still subjudice, due to reason that its Chairman and Members have hot been appointed since long which is non- functional, hence, the instant constitution petition.
4.On per-admission notice, Respondents No, 2, has filed para.- wise comments, wherein, it is stated that petitioner has no locus-standi to file the instant writ petition. It is averred that writ petition is filed by incompetent person, having no authority under law to file the same. It is alleged that petitioner has come to the Court with unclean hands, hence, craved for dismissal of writ petition in Ihnine.
5. The facts of Writ Petition No, 2210/2016, briefly stated are that petitioner, Daewoo Engineering and Construction Company Ltd., are engaged in construction of 147 Mega Watts Hydro Power .Project in Muzaffarabad, Azad Jammu & Kashmir and District Abbottabad KPK, since Tax Year 2011. As per claim of petitioner, the aforesaid company is regular Taxpayer which has paid huge amount of tax since start of the projects. The Inland Revenue Officer (Companies) Mirpur, Respondent No, 2, passed an order on 09.06.2016, under Section 162 of Income Tax Ordinance, 2001 and directed petitioner to deposit Rs, 82,857,878/- on account of Income Tax & Education Cess. As per stance of petitioner, Respondent No, 2, illegally held that petitioner was liable to pay withholding tax under Section 152 (2A) instead of Section 152(1A) of the Income Tax Ordinance, 2001. The Respondent No, 2, vide notice dated 16.06.2016, issued under Section 138(1) of Income Tax Ordinance, directed petitioner to pay the above mentioned amount till 20.06.2016, failing which recovery proceedings were liable to be initiated. Feeling aggrieved from the aforesaid order petitioner filed an appeal before Commissioner Inland Revenue (Appeals), Respondent No, 2, which after hearing was rejected through impugned order dated 12.07.2016. Feeling dissatisfied from the said order dated 12.07.2016, petitioner filed an appeal before Azad Jammu & Kashmir Council Appellate Tribunal Inland Revenue, Muzaffarabad, which is still sub-judice. However, no order could be passed on the aforesaid appeal due to reason that posts of Chairman and Members are vacant, hence, the instafft constitution petition.
6. On pre-admission notice, Respondent No, 2, has filed comments, wherein, it is stated that petitioner has got no locus-standi to file the instant writ petition. It is alleged that petitioner has not approached to this Court with clean hands, therefore, is not entitled for equitable relief of writ jurisdiction. It is further stated that petitioner has got an alternate remedy, hence, writ petition is bad in law. It is claimed that petitioner is having no authority under law to file the instant writ petition on behalf of company. It is further maintained that petitioner has not arrayed necessary party in the line of respondents, hence, craved for dismissal of writ petition in limine.
7. M/s. Raza Ali Khan & Mushtaq Ahmed Janjua, the learned counsel for petitioners submitted that Section 152(1A) of Income Tax Ordinance, 2001, was applicable in the given cases, for payment of Income tax and Education cess, however, Inland Revenue Officer, Respondent No, 2, wrongly held that Section 152(2A), of the Ordinance supra was applicable. The learned counsel emphasized that although difference amongst tune of tax and cess ibid is only one percent under Section 152(1A) of Income Tax Ordinance, however, as orders passed by Respondent No, 2, were unlawful which constrained petitioners to challenge the same. The learned counsel pressed into service that as in both the writ petitions basic provisions of Sections 152(1A) and 152(2A) of the Ordinance are liable to be interpreted, therefore, prayed for admission of writ petitions.
8. Mr. Babar Ali Khan, the learned counsel for Respondent No, 2, however, has raised a preliminary objection that no authority letter/power-of-attorney was given to petitioners in both the writ petitions, by or on behalf of Companies, hence, the same have been filed incompetently. The learned counsel further submitted that Respondents No, 1 and 2, passed the impugned orders strictly in accordance with law and there is no any error in the aforesaid orders as alleged by petitioners. He further argued that in the given cases Section 152 (2A) of Income Tax Ordinance, 2001, was applicable and impugned orders were passed on the basis of the said provisions of law and submitted for dismissal of writ petitions in limine. The learned counsel in support of his preliminary objection referred to and relied upon an unreported precedent of the apex Court passed in case titled M/s China Machinery Engineering Corporation (CMEC), Association of Persons (AOP), through Mr. Su Guanglei, Project Manager, Member of Association, Principal Officer and Chief Executive, Neelum Jhelum Project, Muzaffarabad vs. Azad Jammu & Kashmir Council Board of Revenue and 04 others (Civil Appeal No, 110/2016) decided on 01.06.2016.
9. We have heard the learned counsel for parties at length and examined the appended documents with utmost care. Before proceeding further, we would like to attend preliminary objection regarding maintainability of writ petitions, as averred that the same have been filed by incompetent persons, who were never assigned any power to file the same before this Court. It appears that Writ Petition No, 2075/2016 has been filed by Mr. LEE, DONG HO, a citizen of the Republic of Korea, who allegedly was authorized by Daelim Industrial Co. Ltd vide power-of-attorney dated 28.07.2014. The aforesaid power-of-attorney is reproduced herein below: "DAELIM POWER OF ATTORNEY 28th of July, 2014 Seoul, Republic of Korea To all to whom these present shall come, DAELIM INDUSTRIAL Co., LTD., a corporation organized and existing under the laws of the Republic of Korea, and having its registered office 36, Jong-ro 1-gil, Jongno-gu, Seoul, Republic of Korea, registered by National Tax Services on Sep. 1st, 1994 under registration number 116-81-35007 (hereinafter called the "Company"), represented by its CEO & President, Mr. Dong Soo Kim, acting on the basis of the Articles of Association, NOW KNOW YOU ALL THESE PRESENTS WITNESS that the Company does hereby appoint, and constitute the said Mr. LEE, DONG HO, a citizen of the Republic of Korea, born on 17th of April, 1959, holding his passport No, PM0269226 issued by the Ministry of Foreign Affairs and Trade on 03 August 2006, to be the Company's true and lawful attorney(s), for it and in its name, place and in capacity of the Representative of the Daelim-Lotte Joint Venture in the Pakistan and Azad Jammu & Kashmir with full powers and authority to do and execute all acts, deeds, and things as hereinafter mentioned on behalf of, in the name of and for the Company.
1. to become the registered authorized signatory and manager of the Daelimi-Lotte Joint Venture and represent the Daelim-Lotte Joint Venture with regard to the Pakistan Government Authorities and Azad Jammu & Kashmir' Government Authorities.
2. to do and perform any and all other acts necessary or incidental to the performance and execution of the power herein expressly granted in connection with establishing, operating and representing the Daelim-Lottee Joint Venture.
3. to sign related document(s) in connection with Daelim- Lotte Joint Venture operation which the Manager considers to be necessary to safeguard the interests of the Company or to achieve the objects of the Daelim-Lotte Joint Venture.
4. to manage financial activities of opening the bank accounts of the Daelim-Lotte Joint Venture and its operation, including, but not limited to, withdrawal, cheque issue, transfer of funds, and closing accounts.
Provided that notwithstanding anything hereinabove contained the Company agrees to ratify all acts and things lawfully done by the said attorney pursuant to the owners hereinabove contained.
The Company may delegate all the powers granted to Mr. LEE, DONG HO hereby, or any part thereof, to any physical and juridical persons, and this Power of Attorney may be terminated by the Company at any time by written notice to Mr. LEE, DONG Ho.
IN WITNESS WHEREOF, the Company has caused its corporate name to be subscribed by its CEO & President, Mr. Dong Soo Kim, it being done this 28th of July, 2014 in the city of Seoul, Republic of Korea.
DAEIM INDUSTRIAL Co., LTD Dong Soo Kim CEO & President"
10. A bare reading of power-of-attorney dated 28.07.2014, supra, reveals that Mr. LEE, DONG HO, has not been authorized to file any suit, revision, writ and appeal in any Court of law including this High Court. A power-of-attorney is a written authorisation by which the principal appoints another person as his agent and confers A upon him the authority to perform such functions as specified by the principal. The primary purpose of an instrument in the nature of power-of-attorney is to evidence the authority of the agent to third parties with whom the agents deal. The rule is now well established that the power-of-attorney must be strictly construed. A power-of- attorney confers only those powers which are specified therein, and the agent may neither go beyond nor deviate from the terms of the instrument. It is, therefore, held that an attorney can perform only those powers or perform such acts which have been specifically mentioned in the power-of-attorney. A similar proposition came under consideration before the apex Court in case titled Manzoor Begum vs. Haji Fazal Ellahi [2012 SCR 70]. At pages 77 and 78 of the report it was held as under: ..........Before proceeding further it may be stated that a power- of-attorney should be construed strictly. A power-of-attorney gives only such authority as it confers expressly or by necessary implication and it cannot empower beyond that what it really conveys. The most important rule for construction of power-of-attorney is that regard must be had to the recitals-which, as showing the scope and object of power, will control all general terms in the operative part of the instrument, Authority is given to do a particular act followed or preceded by general words. General words are restricted to what is necessary for proper performance of a particular act and general words in no way confer general powers, but are limited to the purpose for which the authority is given. Where special powers are followed by general words and vice versa, the general words are construed as limited to what is necessary for proper exercise of special power.
6. A power-of attorney is not open to liberal interpretation. It is subjected to strict interpretation because it delegates powers which are to be interpreted in strict terms and in such a way as would be necessary to carry into effect the authority that is expressly given."
A similar view was expressed by the apex Court in case titled Muhammad Mehrban vs. Sadrud Din & another [1995 SCR 274], wherein, at page 277 of the report it was observed as under: "11. The general rule of construction is that powers of attorney must be constructed strictly as giving only such authority as those confer expressly or by necessary implication."
In another case reported as Gul Taj Begum vs. Lal Hussain another [ALA 1R80 SC (AJ&K) 60], at page 64 it was held by the Hong Supreme Court as under: ".., ....To interpret a document as a whole is to be looked into. A power of attorney should be construed strictly and should be interpreted to give only such authority as it confers expressly or by necessary implication. The important rules for the construction of such a document is that regard must be had to the recitals which, as showing the object of the power."
The same view was expressed by the apex Court in case titled Azad Jammu & Kashmir Government and 04 others vs. Sardar Muhammad Azad Khan [2001 SCR 221]. At page 226 of the report it was held as follows: "5. We have given due consideration to the matter in light of the contentions raised at Bar. It may be pointed out that there is hardly any doubt that if the power to do an act has not been specifically given to an attorney, such an act, whether compromise or otherwise, is of no legal consequence at the option of the concerned party The same proposition came under consideration before the apex Court pt Pakistan in case titled Muhammad Yasin and another vs. Dost MuhaFnmad through Legal heirs and another [PLD 2002 SC 71], wherein, it was opined as under: "It is also well known principle of law that all such instruments of Power of Attorneys in pursuance whereof attorney is authorized to act on behalf of principal are to be construed strictly. Reference can be made to AIR (34) 1947 Nagpur 17 (CN3), PLD 1969 Karachi 123 and 1995 CLC 1541. In view of the principles discussed in these judgments we are of the opinion that according to the terms of Power of Attorney dated 26.02.1973. Dost Muhammad before transferring/ alienating the property on the name of petitioners was bound to have obtained a registered sale-deed in the name of the principal from the concerned departments of the Government. It is an admitted fact that such transfer was never effected in favour of Dost Muhammad, therefore, Suleman had no authority for transfer of land on the name of petitioners who are his sons. Learned counsel stated that as late Dost Muhammad has consented for transfer of the property in favour of petitioners, as such non- compliance of above condition of Power of Attorney will have no bearing on his rights. In this behalf High Court did not entertain this argument because Dost Muhammad was not factually associated in the proceedings of transferring the property in favour of petitioners by late Suleman and we see no reason to differ with these observations of the High Court. Thus the arguments so raised in this behalf have no substance."
11.As petitioner company, Daelim Lotte Join Venture, never authorised to Mr. LEE, HONG Ho, to file any writ petition before this High Court, hence, it is safely held that same has incompetently been filed which is accordingly bad in law.
12.Likewise Writ Petition No, 2210/2016 titled Daewoo Construction Company Ltd. has been filed by Mr. CHAN YONG PARK, Project Manager of Daewoo Engineering & Construction Company. However, neither any power-of-attorney or instrument nor declaration by or on behalf of the aforesaid company has been placed on record which might have authorised to Mr. CHAN YONG PARK, to file any lis before this Court. Therefore, the above writ petition has also been filed incompetently.
13.As we have come to the conclusion that writ petitions filed before this Court have been filed incompetently, therefore, there is no need to discuss the other points raised by the learned counsel for parties as the same will be futile exercise and it is by now well settled Principle of law that judgment cannot be recorded by the Court mere for academic discussion.
14.The gist of above discussion is that preliminary objection raised by the learned counsel for Respondent No, 2, is prevailed and both the writ petitions are hereby dismissed in limine as being filed incompetently. A copy of the instant judgment shall be annexed with connected file.