The Petitioner has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution" ) against recovery notice dated 23.07.2018 issued by the Respondent No.5/Additional Commissioner with the prayer that the Respondents be restrained to recover the amount till finalization of Petitioner 's appeal pending before the Respondent No.4/Commissioner (Appeals).
A. BRIEF F ACTS
2. The Petitioner is a public limited company incorporated under the Companies Ordinance, 1984 and this petition is filed on behalf of the Petitioner throu gh its authorized attorney . After issuance of show cause notice dated 04.04.2018 by the Respondent No.5, the Petitioner filed detailed reply . Order in Original was passed by aforesaid Respondent on 23.07.2018 against which the Petitioner immediately filed appeal before the Respondent No.4/Commissioner (Appeals) under Section 63 of the Punjab Sales Tax Services Act, 2012 (the "Act" ). When no stay was granted to the Petitioner by the Commissioner (Appeals), the Petitioner approached this Court on 18.10.2018 by filing W.P.No.239851 of 2018 challenging constitution of Punjab Revenue Authority (PRA), etc wherein stay was granted but later on aforesaid writ petition was dismissed.
B. PETITIONER'S ARGUMENT
3. Learned counsel for the Petitioner argues that under Section 64 of the Act the Commissioner (Appeals) has powers to stay the recovery till decision of the appeal and has relied on judgment of this Court cited as "RELIANCE COMMODITIES (PRIV ATE) LTD Versus FEDERA TION OF PAKIST AN and others" (PLD 2020 Lahore 632). He further argues that access to justice is a fundamental right of the Petitioner and relied on "MEHRAM ALI and others Versus FEDERA TION OF PAKIST AN and others" (PLD 1998 SC 1445 ) in which it has held that an essential feature of such right includes the determination of any grievance or dispute by an independent tribunal. He adds that the Petitioner cannot be forced to make payment unless the matter is finally adjudicated by an independent tribunal. Next states that if the Respondents are not restrained from recovering the impugned amount, the Petitioner will suffer an irreparable loss during pendency of appeal before the Respondent No.4.
C. RESPONDENT'S ARGUMENT
4. Learned Additional Advocate General objected to maintainability of the petition on the ground that since the appeal of the Petitioner is pending and there is no stay order in the field therefo re, impugned notice was validly issued by the authority to recover the amount.
5. Heard. Record perused.
6. This order will basically discuss the important questions which arise out of Constitution regarding the constitutional provisions on the stay of recovery in tax matters, nature of writs and grant of interim relief as stop gap arrangement as well as the concept of statutory right of appeal with inbuilt stay provisions.
D. CONSTITUTIONAL PROVISIONS IN T AX MA TTERS.
7. The prayer made in this petition is twofold. Firstly the Petitioner is seeking direction under Article 199 of the Constitution to the Respondent No.4 by way of writ of mandamus to decide the application within the time frame provided under Section 63, 64 and 65 of the Act. Secondly , the Petitioner is seekin g writ of prohibition under Article 199 of the Constitution against the Respondents to restrain from taking any adverse action due to inbuilt stay mechanism provided under the law .
8. According to Article 199 of the Constitu tion, any party aggrieved may approach the High Court for such relief but the High Court while passing any order in tax or revenue matters has to consider Article 199(4) of the Constitution which demonstrate that the interim order should not interfere with public works or otherwise harmful to public interest or should have an effect of impeding the assessment or collection of public revenues. The said Article further manifests that the Court shall not make any interim order unless prescribed law officer has been given notice of the application or has had an opportunity of being heard and the Court has to record reasons in writing.
Today learned Additional Advocate General appeared and has been heard on behalf of the Respondents and thus the requirement of Article 199(4) of the Constitution is met with.
9. In this case, the Petitioner has a fundamental right to be treated as per Article 4 of the Constitution which clearly states that every citizen has an inalienable right to be treated in accordance with law and no action detrimental to his/her life, liberty , reputation or property shall be taken except as per law. While Article 23 of the Constitution provides right to acquire, hold and dispose of property which is protected under Article 24 of the Constitution.
10. In the case in hand, the appeal of the Petitioner is pending with the concerned authority and the case has not yet ripened because of further appeals to the Appellate Tribunal under Section 66 of the Act and a reference to learned Division Bench under Section 67-A of the Act. Therefore, the Petitioner 's rights have not been determined so far by the Tax Authority . However , Article 10-A of the Constitution provides and protects fundamental right of citizen to have fair trial and due process and Courts are charged with duty to protect those rights including the rights of tax payers and under the doctrine of stop-gap, the Courts have granted interim relief during the pendency of the matter . Reliance is placed on M/s Pak Saudi Fertilizers Ltd. v. Federation of Pakistan and others (2002 PTD 679), Z.N. Exports (Pvt.) Ltd. v. Collector Sales Tax etc. (2003 PTD 1746 ), "Messrs PEARL CONTINENT AL HOTEL, LAHORE through Director Finance and another versus CUST OMS, EXCISE AND SALES TAX APPELLA TE TRIBUNAL, 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, Karach i versus Additional Collector , customs, Excise and Sales Tax (Adjudication-III), Government of Pakis tan, Karachi and 2 others" (2006 PTD 2207 ), "PAK SUZUKI MOT ORS CO. LTD. through Senior General Manager (Corporate Planning & Logistics) , Karachi versus COLLECT OR OF CUST OMS through Assistant Collector (Processing), Karachi"( 2006 PTD 2237 ) and "MARI PETROLEUM COMP ANY LTD. Versus APPELLA TE 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 as discussed in the above referred cases by holding that an assessee is entitled to adjudicate in respect of his disputed tax liability by at least one independent forum outside the hierarchy of the Respondent department.
11. Under Article 37-d of the Constitution, the Courts ensure expeditious justice as the same is an obligation on part of the State. Therefore, Courts invoke doctrine of stop-gap arrangement from time to time in tax/revenue matters.
12. This Court has already explained the doctrine of ripeness in recent reported judgment cited as "RELINCE COMMODITIES PVT LTD Versus FEDERA TION OF PAKIST AN and others" (PLD 2020 Lahore 632) wherein it has been held that if the matter is not yet ripened with the authorities, no recovery can be made.
E. ST ATUTORY RIGHT OF APPEAL AND INBUIL T ST AY MECHANISM
13. 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 Appellat e 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.
14. Perusal of file reveals that the Petitio ner's appeal was filed on 18.09.2018 (Annex-D1 of the Petition) and has not been decided so far by the Commissioner (Appeals) despite lapse of statutory deadline. Therefore, this Court has to protect the Petitioner 's right under Article 18, 4, 10-A of the Constitution as a stop-gap arrangement. The stop-gap arrangement under tax laws is derived from Article 199(1)(4)(a) read with Section 66, 67 and 68 of the Act coupled with judgments of the Courts passed from time to time. The Respondents while deciding the appeal has to follow the Punjab Sales Tax on Services (Adjudication and Appeals) Rules, 2012 in which Rule 11 clearly states that it is the responsibility of the adjudicating officer to protect the legitimate revenu e rights of the Government and give genuine relief to the taxpayer consistent with law .
15. Keeping in view the mandate of Article 37-d of the Constitution for provision of expeditious justice and in the light of DOCTRINE OF LIMINE CONTROL elaborated by this Court in Chairman BoG University Of Lahore and others Vs Asif Saleem (PLD 2019 Lahore 407), this writ petition has been heard at length and is being decided on the same date with directions to the Respondents to do what the law requires them to do under Article 199 of the Constitution and the provisions of the Act.
16. After hearing learned counsel for the Petitioner and learned Additional Advocate General and in view of the law laid down in aforesaid judgments, as a stop gap measures, I am inclined to grant temporary relief to the Petitioner by directing Respondent No.3 to decide the appeal of the Petitioner within a period of two (02) months and stay application within a period of one (01) month in accordance with law, from the receipt of certified copy of this order .
However , till the decision of stay application by the Respondent No.3, no coercive measures for recovery of disputed amount shall be taken against the Petitioner by the Respondents.
16. Disposed of. Copy dasti.