SYED ARSHAD ALI, J.---Through this single judgment we intend to dispose of the following writ petitions, as they all have common questions of law and facts involved therein. The particulars of the writ petitions are:- i. W.P.No,110-A/2017 Messrs Gas Masters CNG Station v. Federation of Pakistan and others. ii. W.P.556-A/2017 Messrs Mart CNG Station v. Federation of Pakistan and others. iii. W.P.557-A/2017 Messrs Gas Mach CNG Station v. Federation of Pakistan and others. iv. W.P.558-A/2017 Messrs Gas Care CNG Station v. Federation of Pakistan and others. v. W .P.559-A/2017 Messrs Auto Gas CNG Station v. Federation of Pakistan and others. vi. W.P.560-A/2017 Messrs Gas Matt CNG Station v. Federation of Pakistan and others. vii. W.P.561-A/2017 Messrs Gas Mark CNG Station v. Federation of Pakistan and others. viii. W.P.562-A/2017 Messrs Gas Mount CNG Station v. Federation of Pakistan and others. ix. W.P.563-A/2017 Messrs Auto Fuels CNG Station v. Federation of Pakistan and others. x. W.P.564-A/2017 Messrs Cool Gas CNG Station v. Federation of Pakistan and others. xi. W.P.565-A/2017 Messrs Gas Masters Mansehra CNG Station v. Federation of Pakistan and others.
2. In all the petitions, the petitioners seek the constitutional jurisdiction of this Court with the following prayer:-- "In view of the circumstances narrated supra, it is most respectfully humbly prayed that the Honourable High Court may be pleased:- I) To graciously declare the order passed by Respondent No, 1 (Annexure-H) as without jurisdiction, illegal, without lawful authority, incompetent and of no legal effect and consequence being based on cut and paste policy; ii) To graciously declare the representation filed by Respondent No, 3 as without lawful jurisdiction, illegal, incompetent and of no legal effect being based on false, concocted and wrong facts; iii) To kindly direct the Respondent No, I to explain that in the presence of clear provisions of FTO Ordinance, 2000 and verdicts of binding nature issued by Honourable Supreme Court of Pakistan and High Courts of Pakistan, under what authority of law they had accepted the incompetent representation and set aside the lawful portion of order issued by FTO; iv) To kindly direct the respondent No, 2 to take strict lawful action against Respondents 3 and 4 for cheating, deception and false statement before the President regarding status of petitioner and their patently illegal action for snatching of funds of innocent citizens; v) To kindly direct the accountability forums to initiate appropriate disciplinary/lawful actions against the Respondents 2 to 7 for their act of omission and commission to deprive a citizen of Pakistan from his lawful property; vi) To kindly grant any other further suitable relief under the circumstances of the case along with special costs."
3. Learned counsel appearing on behalf of petitioners while arguing the case have referred to section 2(3) of the Establishment of the Office of Federal Tax Ombudsman Ordinance, 2000 ("Ordinance of 2000") and have stressed that the conduct of the respondents, whereby they unnecessarily delayed the claim for refund of the petitioners, amounts to maladministration, therefore, Federal Tax Ombudsman ("FTO") has got the jurisdiction to intervene in the matter. They next argued that the claim of the petitioners for refund was illegally withheld because under section 234 of Income Tax Ordinance, 2001 ("Ordinance of 2001"), the petitioners were entitled to refund of the excess taxes paid by them. They have referred to the various show-cause notices issued to the petitioners wherein it has been provided that the petitioners are required to submit their wealth statements. However, due to non-submission of the wealth statements by the petitioners and its members not only their claim for refund has been delayed but a penalty has also been imposed on them which is neither proportionate nor legal. In this regard the learned counsel for the petitioners have placed reliance on section 116(4) of the Ordinance of 2001 and argued that being Association of Persons ("AOP") the petitioners are not required to submit wealth statements along with reconciliation of wealth statements, therefore, not only is the penalty imposed on them illegal but withholding and delaying refund of their excess taxes is also illegal and amounts to maladministration, thus, the order of Worthy President of Pakistan is illegal and without lawful authority.
4. While controverting the arguments of learned counsel for petitioners, learned Assistant Attorney General, appearing on behalf of respondent No,1, has argued that since the order impugned i,e, refund claim and penalty were appealable under Ordinance of 2001, therefore, the jurisdiction of FTO was barred under section 9 (2) of the Ordinance of 2000 and the impugned order passed by the President is legal and justified.
5. Arguments of learned counsel for the parties heard and record perused with their valuable assistance.
6. The most crucial point for determination before this Court is the jurisdiction of the FTO in the present matter. The Office of Federal Tax Ombudsman has been established under Chapter-II of the Ordinance of 2000, whereas jurisdiction to investigate certain matters has been enunciated in section 9 of the Ordinance of 2000. For ease of reference the said section is reproduced below:-- "9. Jurisdiction, functions and powers of the Federal Tax Ombudsman. (1) Subject to subsection (2), the Federal Tax Ombudsman may on a complaint by any aggrieved person, or on a reference by the President, the Senate or the National Assembly, as the case may be, or on a motion of the Supreme Court or a High Court made during the course of any proceedings before it or of his own motion, investigate any allegation of maladministration on the part of the Revenue Division or any Tax Employee.
(2) The Federal Tax Ombudsman shall not have jurisdiction to investigate or inquire into matters which-
(a) are subjudice before a court of competent jurisdiction or tribunal or board or authority ,on the date of the receipt of a complaint, reference or motion by him; or
(b) relate to assessment of income or wealth, determination of liability of tax or duty, classification or valuation of goods, interpretation of law, rules and regulations relating to such assessment, determination, classification or valuation in respect of which legal remedies of appeal, review or revision are available under the Relevant Legislation.
(3) Notwithstanding anything contained in subsection (1), the Federal Tax Ombudsman shall not accept for investigation any complaint by or on behalf of a Tax Employee concerning matters relating to the Revenue Division in respect of any personal grievance relating to his service.
(4) For carrying out the objectives of this Ordinance and, in particular for ascertaining the causes of corrupt practices and injustice, the Federal Tax Ombudsman may arrange studies to be made or research to be conducted and may recommend appropriate steps for their eradication.
(5) The Federal Tax Ombudsman may set up regional offices as, when and where required."
7. In view of the aforesaid section, it is clear that the FTO has the authority to investigate or inquire into matters in respect of any allegation of maladministration on part of the Revenue Division or any Tax Employee. The condition precedent for invoking jurisdiction of the FTO is the maladministration on part of the official of the Revenue. It would thus be expedient to reproduce the term "maladministration" which has been defined in section 2(3) (iii) of Ordinance of 2000, which reads as:-- "2. (1) ..............................
(2) ..................................
(3) "maladministration" includes:-
(i) a decision, process recommendation, act of omission or commission which-
(a) is contrary to law, rules or regulations or is a departure from established practice or procedure, unless it is bona fide and for valid reasons;
(b) is perverse, arbitrary or unreasonable, unjust, biased, oppressive, or discriminatory;
(c) is based on irrelevant grounds; or
(d) involves the exercise of powers, or the failure or refusal to do so, for corrupt or improper motives, such as bribery, jobbery, favouritism, nepotism, and administrative excesses;
(ii) neglect, inattention, delay, incompetence, inefficiency and ineptitude, in the administration or discharge of duties and responsibilities;
(iii) repeated notices, unnecessary attendance or prolonged hearings while deciding cases involving--
(a) assessment of income or wealth;
(b) determination of liability of tax or duty;
(c) classification or valuation of goods;
(d) settlement of claims of refund, rebate or duty drawback; or (e)determination of fiscal and tax concessions or exemptions;
(iv) wilful errors in the determination of refunds, rebates or duty drawbacks;
(v) deliberate withholding or non-payment of refunds, rebates or duty drawbacks already determined by the competent authority;
(vi) coercive methods of tax recovery in cases where default in payment of tax or duty is not apparent from record; and
(vii) avoidance of disciplinary action against an officer or official whose order of assessment or valuation is held by a competent appellate authority to be vindictive, capricious, biased or patently illegal.
8. Upon close perusal of aforesaid definition, it evident that repeated notices by the official of Revenue without any cause, unnecessary attendance or prolong hearings while deciding cases involving assessm ent of income or wealth, determination of liability of tax or duty, classification or valuation of goods, settlement of claims of refund, rebate or duty drawback, or determination of fiscal and tax concession or exemptions constitute maladministration and such actions on part of the revenue division are amenable to the jurisdiction of FTO as provided under section 9(1) of Ordinance of 2000, however, under section 9(2) of the Ordinance of 2000 there is a bar on its jurisdiction to investigate or inquire into the matters which relates to assessment of income or wealth, determination of liability of tax or duty, classification or valuation of goods, interpretation of law, rules and regulations relating to such assessment, determination, classification or valuation in respect of which legal remedies of appeal, review or revision are available under the Relevant Legislation, which in the present cases is Ordinance of 2001.
9. In order to ascertain as to whether in the present case the FTO had any jurisdiction we have to precisely refer to the grievances of the petitioners and the enabling applicable provisions of the Ordinance, 2001. The petitioners are AOP deriving income from running CNG Stations. The petitioners are required to pay advance income taxes under section 234-A of Ordinance of 2001 at the rate specified in Part III of the First Schedule on the amount of gas bill of the CNG station (i,e, is 4% of the total consumption) and as such the income tax so paid by them is their final liabilities and, hence, fall within Final Tax Regime ("FTR"). It is pertinent to note that before insertion of section 234-A in the Ordinance of 2001, through Finance Act, 2007, the petitioners taxes were assessed under normal tax regime.
10. The petitioners have further claimed that since 2007 taxes deducted under other heads including electricity bills and cash withdrawal etc. were refunded to them by respondents in accordance with enabling provisions of Ordinance of 2001. However, their ordeals started from the tax year 2015 when their claim for refund of excess tax was flatly refused by the respondents without cogent reasons. As per the averments made in the petitions the petitioners filed their claim for refund on 10.9.2015, however, the respondents failed to decide the said application of petitioners.
Therefore, the petitioners had filed a complaint before FTO on 05.05.2016. During pendency of complaint respondents issued notices to the petitioners imposing penalty on 26.5.2016 for the alleged non-compliance of the petitioners, the provisions of section 165 of the Ordinance of 2011.
During proceedings both the parties agreed that the revenue department will pass a speaking order on the case of refund by 20.6.2016 after obtaining evidence of tax deduction from the petitioners. However, ultimately the order on the excess of refund was passed on 24.06.2016 and imposition of penalty was passed on 17.06.2016. During pendency of complaint filed before FTO, respondents issued notices to the petitioners for imposing penalties on them for their non- compliance of section 165 of the Ordinance of 2001, which relates to non-submission of wealth statement of the petitioners' AOP and members. Accordingly, the respondents also imposed penalty under section 182 of the Ordinance of 2001. The FTO decided the complaint of the present petitioners in affirmative by holding that the respondents have violated written undertaking for settling petitioners' refund claim and imposed penalty without any basis. Further, according to the findings of FTO the inordinate delay in settling refund claim of the petitioners is tantamount to maladministration in terms of section 2 (3) (ii) of the Ordinance of 2000. Resultantly, through order dated 10.10.2016, the FTO issued the following recommendation to the respondents to;
(i) direct the Commissioner to rectify the order in case the complainant provides definite evidence of excess tax payments,
(ii) rectify/review the penalty imposed arbitrarily in disproportionate and arbitrary manner; and
(iii) report compliance within 21 days.
The aforesaid recommendations of he FTO were challenged by the respondents through a representation under section 32 of the Ordinance of 2000 before Worthy President of Pakistan. The Worthy President while accepting the representation of the respondents has set-aside the recommendation of FTO, vide order dated 02.01.2017, by holding that it has no jurisdiction to entertain the complaints filed by the petitioners. The present petitioners have challenged the order of the Worthy President through the present petitions.
11. Now moving on to the issue at hand i,e, whether, under the enabling provisions of the Ordinance of 2001, any effective remedy is available to the petitioners barring the jurisdiction of FTO under section 9(2) of the Ordinance of 2000. Admittedly, advance income tax paid and collected from the petitioners in their monthly gas bills at the relevant time (2015-16) was their final taxes liability under section 234-A of the Ordinance of 2001, which reads as:- "234-A. CNG Stations.- (1) There shall be collected advance tax at the rate specified in Division VIB of Part -111 of the First Schedule on the amount of gas bill of a Compressed Natural Gas station.
(2) The person preparing gas consumption bill shall charge advance tax under subsection (1) in the manner gas consumption charges are charged.
(3) The tax collected under this section shall be a final tax on the income of a CNG station arising from the consumption of the gas referred to in subsection (1).
(4) The taxpayers shall not be entitled to claim any adjustment of withholding tax collected or deducted under any other head, during the years."
It is also not disputed that respondents revenue department would refund the excess taxes paid by the petitioners in the manner and mode and provided under section 170 of the Ordinance of 2001. In a nutshell, the grievance of the petitioners is in respect of the delay in the refund of their claim and the imposition of penalty under section 182 of the Ordinance of 2001 for non-submission of monthly statements of AOP as required under section 165 of the Ordinance of 2001. While the contention of the respondents is that the petitioners were required to have filed wealth statements of the members of the AOP under section 116(2) read with section 114(2)(e) of the Ordinance of 2001, which they failed to comply with, therefore, penalty was imposed upon them. Whereas the case of the petitioners is that they are not required to file wealth statements under section 116 (4) of the Ordinance of 2001. We abstain to render any findings on merits of the cases, let it may prejudice the cases of any party before appropriate forum as essential issue before us, is the jurisdiction of the FTO in the present matter.
12. However, in order to determine the question before us it would be advantageous to reproduce relevant provisions of the Ordinance of 2001 which envisages the mechanism of claiming refund, requirement of submission of monthly statements, powers of the revenue officials and legal remedies available under the Ordinance of 2001. Section 170 of the Ordinance of 2001 which deals with the claim for refund is reproduced as below:-- "170.Refunds. (1) A taxpayer who "has paid tax in excess of the amount which the taxpayer is properly chargeable under this Ordinance may apply to the Commissioner for a refund of the excess.
(1-A) Where any advance or loan, to which sub-clause (e) of clause (19) of section 2 applies, is repaid by a taxpayer, he shall be entitled to a refund of the tax, if any, paid by him as a result of such advance or loan having been treated as dividend under the aforesaid provision.
(2) An application for a refund subsection (1) shall be.
(a) made in the prescribed form;
(b) verified in the prescribed manner; and
(c) made within two years of the later of
(i) the date on which the Commissioner has issued the assessment order of the taxpayer for the tax year to which the refund application relates; or
(ii) the date on which the tax was paid.
(3) Where the Commissioner is satisfied that tax has been overpaid, the Commissioner shall-
(a) apply the excess in reduction of any other tax due from the taxpayer under this Ordinance;
(b) apply the balance of the excess, if any, in reduction of any outstanding liability of the taxpayer to pay other taxes and
(c) refund the remainder, if any to the taxpayer.
(4) The Commissioner shall, within sixty days of receipt of a refund application under subsection (1), serve on the person applying for the refund an order in writing of the decision after providing the taxpayer an opportunity of being heard.
(5) A person aggrieved by-
(a) an order passed under subsection (4); or
(b) the failure of the Commission to pass an order under subsection (4) within the time specified in that subsection, may prefer an appeal under Part III of this Chapter."
Under the aforesaid section, the Commissioner is required to decide the application of refund within period of sixty (60) days through an order in writing. However, any person aggrieved either by the order of the Commissioner making decision on the claim of refund of the taxayer or his failure to pass an order within statutory period of sixty (60) days has the remedy of appeal under Part III of Chapter VI of the Ordinance of 2001. Similarly, in case of an alleged violation of section 165 of the Ordinance of 2001, which envisages that every person collecting tax under Division II of Chapter XII or deducting tax from payment under Division HI of the said Part or Chapter XII shall furnish to the Commissioner statement in the prescribed form through e-file submission of statement, a penalty has been provided under section 182 of Ordinance of 2001. Any person aggrieved by an order passed under section 170 relating to refund or penalty imposed under section 182 of Ordinance of 2001, may file an appeal to the Commissioner (Appeals) as provided under section 128 of the Ordinance of 2001. Whereas, a person aggrieved from the order of Commissioner (Appeals) has a further remedy of filing second appeal to the Appellate Tribunal under section 131 of the Ordinance of 2001 whereas a reference on question of law arising out of the order of Appellate Tribunal can also be filed before High Court under section 133 of the Ordinance of 2001.
13. Therefore, it can be safely construed that only delay in the process of assessment etc. and settlement of claim of refund by the revenue official is amenable to the inquiry and investigation of FTO and not the order relating to the assessm ent or decision of refund etc. are amenable to the inquiry and investigation of the FTO, thus once an order has been passed by the revenue hierarchy under the Ordinance of 2001, whether legally correct or otherwise, FTO has no jurisdiction to declare the said order illegally. The FTO can only recommend for corrective measures to the revenue division which are binding on the revenue division. In the present cases when the order on the claims of refund and imposition of penalty was passed by a competent officer of the revenue division then the impugned recommendation of the FTO, directing the Commissioner to rectify the impugned orders, is obviously beyond the jurisdiction of the FTO as the orders passed on the claim of refund of the petitioners under section 170 of Ordinance of 2001 and the penalty imposed under section 182 of the Ordinance of 2001 are appealable before Commissioner (Appeals) under section 127 of Ordinance of 2001. Further, if the taxpayer or the revenue department is aggrieved of the order of the Commissioner (Appeals) then the aggrieved party has a remedy of further appeal before an independent forum i,e, Appellate Tribunal under section 131 of the Ordinance of 2001 and against the decision of the Appellate Tribunal a reference on question of law can also be filed before the High Court under section 133 of the Ordinance of 2001.
14. Even otherwise it is settled law that the Courts must avoid a head on clash of seemingly contradicting provisions of law and must harmonize the contradictory provisions by interpreting not only the provisions but also the wisdom of the legislature in order to give effect to both the provisions, thus, in case of any conflict of two provisions of law the courts have to follow the harmonious interpretation and not attribute redundancy to any provisions of law rather both of the conflicting provisions of law are to be harmonized. Therefore, the enabling provisions of the Ordinance, 2000 cannot be stretched to the extent to render the effective legal mechanism of filing appeal against the order of revenue hierarchy redundant. Reliance in this regard is placed on Collector of Customs, Customs House, Karachi v. Syed Rehan Ahmed (2017 SCM R 152), Accountant General Sindh and others v. Ahmed Ali U. Qureshi and others (PLD 2008 SC 522) and Lucky Cement Ltd. v. Commissioner Income Tax, Zone Companies, Circle-5, Peshawar (2015 SCM R 1494).
15.Therefore, the impugned order of the Worthy President of Pakistan that the order of FTO was without jurisdiction is legally and factually correct, which does not call for any interference by this Court. According these writ petitions are dismissed. However, the petitioners are at liberty to approach the proper forum against the impugned order on their refund and imposition of penalty, if so desired.