The supra titled writ petition has been addressed under Article 44 of Azad Jammu and Kashmir Interim Constitution 1974, whereby, the petitioner prayed for annulment of the order dated 16.01.2019 passed by the Deputy Commissioner Inland Revenue.
2. The facts shortly stated are that the petitioner is a regular taxpayer and he is liable to pay tax under Section 233 of Income Tax Ordinance, 2001 and when independent act ensured the taxpayer that no other tax other than enumerated in the Income Tax Ordinance, 2001 will be imposed and charged, then fundamental rights of the petitioner have been infringed by legislating Education Cess Act, 1975 by Respondent No. 1 under Section 31 of the then Azad Jammu and Kashmir Interim Constitution Act, 1974 which as per stance of the petitioner is contrary to Federal Legislative body. It has been alleged that Respondent No. 5 passed order dated 16.01.2019 by charging Education Cess @ Rs. 7,38,352/- over and above the full and final liability that is Rs. 1,03,20,712/- for the tax years 2013 to 2016, hence, the same being contrary to law is liable to be set-at-naught.
3. After admission of the writ petition, Respondents No. 3 to 5 filed written statement and stated that the petitioner has no cause of action and locus-standi to file the instant writ petition as alternate remedy in shape of appeal of Azad Jammu and Kashmir Education Cess Act, 1975 is available to the petitioner. The contents raised in the writ petition were repudiated in toto and finally prayed for dismissal of the writ petition with costs.
4. The learned counsel for the petitioner vehemently contended that the impugned law is not sustainable and ultra vires to the Constitution, thus, proceedings in garb of the same by way of issuance of impugned assessm ent order is illegal as well.
5. While the learned counsel for respondents and learned Assistant Advocate General opposed the petition and stanchly contended that all the proceedings are in line with the scheme of law. The petitioner in order to avoid and take refuge from tax liability brought the instant writ petition for collateral purpose which is not maintainable.
6. I have heard the learned counsel for the parties and perused the record with my due care and caution.
7. The basic stance of the petitioner is that the order passed by Respondent No. 5 Deputy Commissioner Inland Revenue is illegal, without any jurisdiction and against the Education Cess Act, 1975 and he alleged that verdict of the aforesaid order pertaining to filing of appeal before the Commissioner Inland Revenue is also contrary to law as there is no other provision of delegation of powers nor the appellate forum is available in Education Cess Act, 1975 and whether imposition of the said act to the petitioner to the extent of full and final liability under Section 233 which falls under the umbrella of superseding Section 3 of Income Tax Ordinance, 2001 is maintainable under law or not? For convenience relevant Section 3 of the Act is usefully inserted as under: "3. Ordinance to override other laws-The provisions of this Ordinance shall apply notwithstanding anything to the contrary contained in any other law for the time being in force."
8. At the outset, the petitioner has challenged the vires of law i.e. Education Cess Act, 1975 but has failed to array the necessary parties in the line of respondents. Azad Jammu and Kashmir.
Legislative Assembly and Azad Govt. are necessary parties in the lis. The petitioner has called in question the wisdom of legislature which cannot be looked into at the back of the legislature. The petitioner has switched over and bypassed the statutory Appellate Fora provided by the Act, 1975. It is trite that vires of law cannot be questioned in collateral proceedings. Seemingly the petitioner in order to get relief against the impugned assessment order opted to attack the law at random. No order without hearing the legislature can be passed, if a necessary party is 'absent, there can be no adjudication.[1] It is celebrated principle of law that an adverse finding cannot be recorded against a person at his back.[2] Legislative body has not arrayed as party; writ is not competent on this sole score.
9. The learned AAG raised further objections that an alternate remedy in shape of appeal before the Controlling Authority was available to the petitioner but instead of filing appeal against the assessm ent order the petitioner preferred the instant writ petition, which is not maintainable. Right of appeal against the assessm ent is provided under Section 3-C of the Azad Jammu and Kashmir Education Cess Act, 1975 which is reproduced as infra:- 3-C. Appeals. The Assessm ent under Section 3-B is appealable by an aggrieved person before the Controlling Authority within 30 days from the date of assessment. The appeal may be decided after giving due opportunity of hearing.
It is appropriate to mention here that Sections 3-B, 3-C and 3-D were inserted in the above law by AJ&K Finance Act, 2016 dated 02.08.2016.
10. Another argument advanced by the learned counsel for petitioner that levey of tax under Education Cess Act, 1975 through income tax authorities is contra jus and arbitrary. As per his estimation, tax can only be levied by the tax authorities under Section 233 of the Income Tax Ordinance, said argument is mere hypothesis and not tenable, thus, repelled. Trite that pari materia laws dealing with the same subject matter can go side by side. In pursuance of the powers conferred under Sections 3B and 3D of Azad Jammu & Kashmir Education Cess Act, 1975, the Commissioner Income Tax delegated the powers to the different tax authorities in this regard vide order dated 17.10.2016, wherein, the office of Inland revenue circle 3 Kotli is also included, which is in file. The petitioner has failed to challenge the order dated 17.10.2016 as well writ petition is bereft of merit. Equitable relief is available in extraordinary circumstances, halfhearted attempt in guise of challenging vires of law in collateral proceedings is seemingly an attempt to take refuge from tax liabilities and ex-facie amounts to tax evasion. Trite one, who seeks equity must come with clean hands, equitable relief in the circumstances declined.
(underlining for emphasis)
For the above multiple reasons, the instant writ petition is bereft of merit, hence, fails which is accordingly dismissed, no order as to costs.
1. Mirza Lal Hussain vs. Custodian 1992 SCR 214.
2. Vice Chancellor vs. Mohammad Shazad Khalid 2000 SCR 575.