This matter pertains to the levy/impositio n of advance income tax by the Federation, Federal Excise Duty by the Federation in the Islamabad Capital Territory , Sales Tax on Services by the Provinces and the imposition by the Cellular Mobile Operators, which have different nomenclatures for including 10 percent service charge and maintenance charges. The learned counsel representing Cellular Mobile Operators state that they stopped collecting levy/imposition/service charges/maintenance charges and do not intend to do so.
2. The learned Attorney General for Pakistan ("AGP") raises question as to whether this matter could be considered within the constitutional jurisdiction of this Court in exercise of powers under Article 184(3) of the Constitution of the Islamic Republic of Pakistan ("the Constitution ") as, according to him, it does not meet condition of it attending to Fundamental Rights enshrined in the Constitution. The learned Advocate Generals of Khyber Pakhtunkhwa and Islamabad and learned Additional Advocate Generals, Punjab, Sindh and Balochistan support the AGP with regard to his conten tion as to jurisdiction of this Court under Article 184(3) of the Constitution.
The learned AGP further states that levy/imposition of said taxes was done by an interim order dated 11 June, 2018 of this Court without holding the provisions in the Income Tax Ordinance, 2001 and the Sales Tax on Services Acts of the Provinces and as such it would be appropriate that the matter may be adjudicated at an early date. We also note that the referred to interim order was passed by a three member Bench. Let this matter be heard by a three member Bench and the matter be referred to the Hon'ble Chief Justice of Pakistan for the constitution of such bench. A cursory examination of the matter has thrown up the following questions which include: i. whether this matter can be proceeded in exercise of the jurisdiction of this Court under Article 184(3) of the Constitution, and if this question is determined in the affirmative then the noted below questions would require consideration;th ii. the scope of whether advance tax under section 236 can be levied/recovered from non-taxpayers under section 236 of the Income Tax Ordinance read with section 147 and section 2(66); iii. whether imposition of sales tax by the Provinces can be resorted to with regard to the consumers under the different sales taxes regime of Provinces; and iv. whether Federal Excise Duty can be imposed on service provide by Cellular Mobile Operators.
The Federation and the Provinces to submit written responses to the aforesaid questions which should be accompanied with the applicable legal provisions and the amounts of taxes that were recovered for the period from 30 June, 2017 till 30 June, 2018. The concise statements should be jointly signed by the Secretaries, Finance and Law and Advocate Generals of the Provinces. As regards the Federation such concise statement should be signed by the Secretaries, Revenue and Law, Advocate General, Islamabad and Attorney General for Pakistan, if they do not concur they can file separate concise statements. In case the Cellular Mobile Operators want to file responses to the questions noted above, they may do so.