M AHM OOD A. KHAN, J. This petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 wherein the petitioner requires restraint of respondents Nos. 2, 3 and 4 from enforcing a notice of recovery dated 29.01.2013 claiming the same to be unlawful whereby recovery of an alleged tax liability for Rs.67,980,950/- as determined by respondent No.4 through an Assessm ent Order No. 02/2012 dated 18.10.2012 is made said to have been served upon the petitioner on 12.11.2012. According to the petitioner the said assessment order was challenged by the petitioner in an appeal before respondent No.3 which was dismissed by an order dated 20.11.2019. The petitioner impugned the same before respondent No.5 under section 46 of the Sales Tax Act, 1990 read with Section 34 of the Federal Excise Act, 2005 and a stay application was also filed. The petitioner claims apprehension that measures may be adopted by the relevant respondents before an opportunity of hearing is granted by respondent No.5 leaving with no interim efficacious remedy available. It is further contended that respondent No.4 issued a show- cause notice dated 21.07.2010 to the petitioner alleging violation of inter alia provisions of Sections 3, 4, 17 and 18 of Federal Excise Act, 2005 and Sections 6, 7, 8 and 8(b) of Sales Tax Act, 1990 on services provided for international journey and a short payment of Rs.1,248,687/- on account of inadmissible input tax adjustment and was called upon to show-cause as to why aforesaid amount should not be assessed under section 14 of the Federal Excise Act, 2005 Act and Section 36(1) of the Sales Tax Act, 1990 along with default surcharge under section 8 and 34 of the said Acts. The said show-cause notice was replied by the petitioner denying the alleged liability and explanation of their position whereon respondent No.4 after lapse of two years passed the assessm ent order dated 18.12.2012 against the petitioner holding that the petitioner has not discharged its sales tax and federal excise tax liability correctly on international flight operating to and from Pakistan and was unlawfully claiming input tax adjustment against such services. The respondent No.4% held that the federal excise duty in the sum of Rs. 67,980,950/-was to be recovered from the petitioner excluding the default surcharge and penalty to be calculated at the time of payment.
2. That the petitioner referred to impugned order before this Court on the original side by way of Suit No. 1737/2012 on the ground that the aforesaid show-cause notice was not decided within 120 days and the impugned order, is time barred in terms of Section 14 of the Federal Excise Act, 2005 read with Section 11(5) of the Sales Tax Act, 1990 and has therefore no legal value. The same is without jurisdiction, an interim order dated 21.12.2012 was obtained whereby the recovery was suspended. That despite or the fact that the interim order dated 21.12.2012 was in field, the respondent No.5 without any lawful authority and in violation of said order attempted to recover the alleged tax by issuing the impugned notice under section 48 of the 1990 Act and while the said matter was pending before this Court, the Hon'ble Supreme Court passed an order dated 27.06.2018 in Civil Appeals Nos. 1171, 1179 to 1187 along with other matters wherein it was directed that suits relating to tax/duties and such financial matters must only be entertained on the condition that a minimum of 50% of the tax calculated by the tax authorities is deposited with the authorities.
In light of aforesaid order of the Hon'ble Supreme Court, the learned Single Judge passed an order dated 14.05.2019 directing the petitioner to deposit 50% of the tax demanded by the respondents, failing which the suit was to be dismissed as not maintainable. On 21.05.2019 the petitioner withdrew the said suit with intention to seek appropriate departmental remedy and immediately approached the respondent No.3 filing a statutory appeal along with a stay application through its tax consultant against the said assessment order. The said appeal was dismissed by respondent No.3 through impugned order and the petitioner challenged the same before respondent No.5 along with a stay application where the same is pending adjudication. That even though the appeal is pending, the petitioner is under an imminent threat of respondents taking coercive actions including but not limited to unlawfully debiting bank accounts of the petitioner for recovery of the alleged tax. That in the event the recovery is made before the petitioner's appeal/stay application can be decided, the petitioner may be deprived of its guaranteed rights of "fair trial and due process" and as such the petitioner filed the instant petition before this Court.
3. Having heard the learned counsel for the petitioner on 11.02.2020 following order was passed; "Prima facie, it appears that against the order passed by the taxation authority in 2012, instead of filing an appeal before the statutory forum, the petitioner approached the learned Single Judge of this Court by filing a suit and obtained stay against recovery. However, in view of the recent judgment of the Hon'ble Supreme Court, on the maintainability of suit in tax matter, the taxpayer was required to deposit 50% of the disputed amount while filing a suit, such suit was withdrawn. unconditionally by the petitioner, who instead of continuing with suit by depositing 50% of the disputed amount, chose to file a time-barred appeal before the Commissioner Inland Revenue, which was dismissed for being time-barred as neither any condonation was granted by the learned Single Judge nor such request was made by the petitioner while withdrawing the suit unconditionally. Thereafter IInd Appeal has been filed before the Appellate Tribunal along with stay application, whereas, petitioner seeks stay against the recovery from this Court by filing instant constitutional petition by invoking Article 199 of the Constitution" and the learned counsel was provided time to satisfy this Court as to the maintainability."
4. Learned counsel having relied upon the contents of the petition requesting for a restraint order, however it may be observed that in the first instance the tax demand of the year 2012 has remained un-addressed till filing of this petition in the year 2020. During the course of this period of 8 years the petitioner has already availed restraint order from this Court for 7 years (on the original side) by way of the suit filed, although even then this forum was available. Irrespectively the said suit was withdrawn without a permission for further agitation of the matter before a Court of law as provided under Order XXIII, Rule 2, C.P.C. not to mention the element of acquired avoidance to out- pocketing of 50% of the demand. It is lastly observed that no material has been shown to be present to acquire maintainability despite the order passed on 11.02.2020. In the present circumstances this constitutional petition is found un-tenable. We are well aware that ad-interim injunction has been granted by this Court in cases where matters are pending in appeal however the said cases are quite distinguishable as they pertain to circumstances where the parties are vigilant and prima facie actually require an adjudication on merits in protection of an actual existing right of "fair trial and due process" approaching the Court with clean hands, which is lacking in the petition. This petition as such stood dismissed in limini by the short order dated 20.02.2020 and these are the reasons for the same.