1. Urgency granted.
2. Exemption granted subject to all just exceptions. .
3 & 4. Through instant petition, petitioner has impugned the recovery proceedings initiated by the respondents pursuant to order passed under Section 122(5A) of the Income Tax Ordinance, 2001 for Tax Year 2016 and has also impugned the order dated 03.04.2018 passed by the Commissioner Inland Revenue (Appeals-IV), Karachi, whereby, application for grant of stay has been dismissed. Per learned counsel, the Commissioner has summarily dismissed the stay application filed by the petitioner against the recovery of the impugned demand, without assigning any reasons, and thereafter, the respondents have threatened the petitioner for recovery of the impugned demand through coercive measures, including attachment of the bank accounts of the petitioner. It has been prayed that impugned order dated 03.04.2019 and the recovery proceedings may be quashed.
Record shows that petitioner has filed an appeal against an order passed under Section 122(5A) of the Income Tax Ordinance, 2001 alongwith stay application before Commissioner (Appeals) Inland Revenue, which is pending disposal, however, order has been passed on stay application filed by the petitioner by the Commissioner (Appeals), whereby, the request of the petitioner seeking stay against the recovery during pendency of appeal has been declined.
Such order on stay application is an adverse order which can be assailed under Section 131 of the Income Tax Ordinance, 2001 before the Appellate Tribunal, Inland Revenue, therefore, we are of the view that without availing such statutory remedy, instant petition under Article 199 of the Constitution is misconceived and hot maintainable as alternate remedy is available. While confronted with herein above position, learned counsel for the petitioner submits that petitioner will be satisfied and will not press instant petition, provided the petitioner may be allowed to file an appeal before the Appellate Tribunal, Inland Revenue in terms of Section 131 of the Income Tax Ordinance, 2001 within 15 days and to obtain appropriate order, provided respondents may be restrained from enforcing the recovery of the impugned demand during the pendency of such appeal before the Appellate Tribunal.
Learned DAG present in Court submits that under similar circumstances, a constitutional petition was disposed of in similar terms. Accordingly, instant petition stands disposed of with the directions to the petitioner to seek remedy against the impugned order dated 03.04.2019, whereby, application for stay against recovery of impugned demand has been rejected by the Commissioner Inland Revenue (Appeals-IV), Karachi, by approaching the Appellate Tribunal Inland Revenue, in terms of Section 131 of the Income Tax Ordinance, 2001 within 15 days from the date of this order and to obtain appropriate order on such appeal in accordance with law. However till decision of the appeal by the Appellate Tribunal, if appeal is filed by the petitioner within 15 days, the respondents shall not enforce the recovery of the impugned demand subject matter of appeal before Appellate Tribunal, through coercive process, including attachment of bank accounts of the petitioner.
Petition stands disposed of in the above terms alongwith listed application.