Learned counsel for the Petitioner submits that the Petitioner duly filed reply to the notice dated 16th of February , 2020 issued to him by the Federal Board of Revenue under Section 122(9) of the Income Tax Ordinance, 2001 (the "Ordinance") for amendment in the asses sment and subsequently , the Respondent No.5 passed the assessment order dated 29 of July, 2020 under Section 122(1) of the Ordinance and also issued the demand notice of even date under Section 137(2) of the Ordinance. Then, the Petitioner , being aggrieved of the said assessment order , preferred an appeal under Section 127 of the Ordinance alongwith a stay application before the Respondent No.3, which is still pending for adjudication but the 'Respondent No.5, who is inimical towards the Petitioner , has issued the recovery notice dated 27th of August, 2020 under Section 138(1) of the Ordinance for payment of certain amount on account of tax as per details given in the said notice.
2. Mr. Muhammad Abubakar , Advocate goes on to submit that as per the principl e of inbuilt stay mechanism, no recovery can be made from the Petitioner because under the Doctrine of Ripeness, the matter before the Tax Authorities has not been ripened. He explains that entire machinery and procedure is provided for adjudication of disputes before the appellate forum and the Petitioner can only approach the High Court in Tax Reference.
Moreover , it is settled law that unless the matter is decided by at least one independent forum outside the revenue hierarchy , the recovery of disputed amou nt cannot be made. He pleads that if any recovery under the garb of the aforesaid assessment order/recovery notice is made, it will offend the provisions of Article 18 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), which clearly states that subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business. He further clarifies that the provisions of Article 4 of the Constitution represent the concept of equality before law and equal protection of law and save every citizen ofth Pakistan from arbitrary/discriminatory actions by the Governmental authorities while Article 5(2) of the Constitution embodies that everybody is bound to obey the command of the Constitution.
3. The next contention of learned counsel is that Article 10-A of the Constitution provides right of fair trial and due process for determination of rights and obligations therefore, during the pendenc y of the appeal if any action is taken under the garb of assessment order , the Petitioner will suffer an irreparable loss and injury . In support of his submissions, learned counsel has placed reliance on the recent judgment of this Court passed in the case of Reliance Commodities (Private) Ltd. versus Federation of Pakistan and others (PLD 2020 Lahore 632).
Further reliance is placed on the cases reported as M/s Pak Saudi Fertilizers Ltd. versus Federation of Pakistan and others (2002 PTD 679), Z.N. Exports (Pvt.) Ltd. versus Collector Sales Tax etc. (2003 PTD 1746 ), Messrs Pearl Continental Hotel, Lahore through Director Finance and another versus Customs, Excise and Sales Tax Appellate Tribun al, Lahore and another (2005 PTD 1368 ), Sun-Rise Bottling Company (Pvt.) Limited versus Federation of Pakistan and 4 others (2006 PTD 535), Karachi Shipyard and Engineering Works Limited, Karachi versus Additional Collector , Customs, Excise and Sales Tax (Adjudication-III), Government of Pakistan, Karachi and 2 others (2006 PTD 2207 ), Pak Suzuki Motors Co.
Ltd. through Senior General Manager Corporate Planning & Logistics), Karachi versus Collector Of Customs through Assistant Collector (Processing). Karachi (2006 PTD 2237 ) and Mari Petroleum Company Ltd versus Appellate Tribunal Inland Revenue and others (2016 PTD 2406 ) wherein direction was issued to the authorities to decide the appeal and temporary relief was granted as stopgap measures. He, lastly , submits that on similar issue this Court has recently passed a detailed order on 27th of August, 2020 in Writ Petition No.37861/2020. He explains that in Paragraph 13 of the said order this Court, while highlighting the scope of statutory right of appeal and inbuilt stay mechanism, has observed as under:- "The Doctrine of Statutory Rights of Appeal arises out of Article 199(1) and 199(4) of the Constitution where the High Court, if it is satisfied that no other adequate remedy is provided by law, issues writ of mandamus and prohibition keeping in view Article 199(4 ) of the Constitution and the time frame given therein but this right is subject to notice to the prescribed law officer with an opportunity of being heard and for reasons to be recorded in writing. Article 199 elaborates that in tax matters, after hearing the law officer , if the Court is satisfied, it may make an order for interim relief after recording reasons. Inbuilt interim stay under the statutory appeals are provided in all general laws especially in tax matters therefore, by examining the provisions of the Act .read with Punjab Sales Tax on Services (Adjudication and Appeals) Rules 2012 (the "Rules") it is evident that Section 64 of the Act provides procedure for the appeals to the Commissioner (Appeals) with inbuilt stay by stating that the Commissioner (Appeals) may stay the matter after hearing the parties and can also confirm the same which remains operative upto 60 days. Moreover , the same provision also provides to the tax payer that by filing appeal to the Appellate Tribunal under Section 66 of the Act and under Section 67(2)(3) of the Act, the Appellate Tribunal can also pass the interim order and then confirm the stay which may remain operative for ninety (90) days period. Thereafter , the taxpayer has a right to file reference to the High Court under Section 67A of the Act before the Division Bench which only hears the matters on the question of law. In this case the prayer of the Petitioner is to direct the Respondents to decide the appeal within prescribed period and under Section 64(2) in which the Commissioner (Appeals) may adjourn the hearing of the appeal from time to time and has to dispose off the appeal within a period of 60 days which is time bound provision requiring the Appellate Tribunal to decide a within a given time frame as prescribed by law. The same mechanism also gives a time frame to the Appellate Tribunal to decide the appeal within six months under Section 67(2) of the Act. Above said provisions clarify that the law has itself provided a time bound mechanism for expeditious disposal with inbuilt statutory right of appeal with inbuilt stay mechanism provided under the Statute in which both the Commissioner (Appeals) and the Tribunal have inbuilt mechanism of passing interim orders and then confirming it within a period of sixty days."
4. After hearing learned counsel for the parties and in view of the law laid down in aforesaid judgments/Order , I am inclined to grant, as a-stop gap measure, temporary relief to the Petitioner by directing Respondents No.3 to decide appeal of the Petitioner within a period of two (02) months in accordance with law from the receipt of certified copy of this order . However , till decision of appeal, no coercive measures for recovery of disputed amount shall be taken against the Petitioner by the Respondents.