AHMAD NADEEM ARSHAD, J. Through this constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner has called into question the action of the respondent No.3 qua withdrawing the amount of Rs.1,678,081/- from the bank account of the petitioner despite issuance of the injunctive order.
2. Facts in brevity are that the petitioner is a private limited company and engaged in sale of petroleum products; that the petitioner is registered with respondent No.3 under NTN No.521982 and also furnished the tax return for the year 2022 on 24.12.2022; that the respondent No.4 issued show- cause notice under section 4C(4) of the Income Tax Ordinance, 2001, to the petitioner through IRIS to which he submitted detailed reply but the proceedings were culminated in order dated 21.06.2023 pursuant whereto a demand of Rs.1,678,081/- qua super tax was raised and notice under Section 138(1) of the Ordinance was also issued on 23.08.2023. Feeling aggrieved, petitioner assailed the said order before the learned Commissioner Inland Revenue (Appeals) who dismissed the appeal of the petitioner vide order dated 17.01.2024. Being dissatisfied, petitioner filed second appeal before Appellate Tribunal Inland Revenue (ATIR) and also filed an application for grant of stay against the recovery of impugned income tax demand. Which was accepted vide order dated 31.01.2024 and impugned tax demand was stayed for a period of 30 days or till the decision of main appeal whichever is earlier. Petitioner contended that the respondent No.3 prior to the expiry of period of stay order dated 31.01.2023 issued impugned notice on 01.03.2024 under Section 140 of the Ordinance read with Rule 69 of the Income Tax Rules, 2002, for recovery of impugned demand of income tax to Bank Al-Habib, Samanabad Branch, Faisalabad for the attachment of Bank account of the petitioner and remittance of Money, in favour of respondent No.3, whereas, the Bank in order to make compliance of notice dated 01.03.2024 transferred an amount of Rs.1,678,081/- in favour of respondent No.3. Hence this petition.
3. Heard. Record perused.
4. It evinces from the record that a notice dated 09.02.2023 was issued to the petitioner on IRIS whereby the demand of Rs.1,678,081/- was made -towards the charge of super tax. Petitioner submitted a detailed reply to the said notice but proceedings culminated in order dated 21.06.2023 whereby demand of under Section 138(1) of the Ordinance was also issued on 23.08.2023. Petitioner challenged said order dated 21.06.2023 passed by the respondent No.3 before the Commissioner Inland Revenue (Appeals) who dismissed the appeal vide order dated 17.01.2024. Said order was challenged by the petitioner by preferring second appeal before Appellate Tribunal Inland Revenue and also filed a stay application which was allowed vide order dated 31.01.2024 and Appellate Tribunal Inland Revenue stayed the tax demand in the following manner: "Heard. We have given due consideration to the arguments and feel that the request for stay of demand is justified in the circumstances of the case. Accordingly the recovery of the impugned tax demand is stayed for a period of 30 days or till the decision of main appeal whichever is earlier."
5. Learned counsel appearing on behalf of the respondents maintains that vide order dated 31.01.2024 the tax demand was stayed for a period of 30 days which lapsed on 29.02.2024 upon which the impugned notice was issued and amount of super tax was deducted by attaching the bank account of the petitioner.
6. Section 9 of the General Clauses Act, 1897 and Section 9 of the Punjab General Clauses Act, 1956, prescribe a method of computation of the period of limitation, which exclude the date from which any act has been ordered to be performed as well as the last date upto which the act can be performed. Applicability of said section is not only limited to statutes and notification but the said is also applied while computing the period of limitation as fixed by any judgment, decree or order.
Reliance is placed on the case titled Balochistan" (2002 SCMR 1903) Period of one month for the purpose of an order is to be computed by excluding the date on which the order was passed. For reference "Messrs Malik Muhammad Nawaz Haji Aziz Ahmad, Commission Agents Chakwal v.
Syed Mehmood Hussain" (1997 SCMR 264).
7 When the Section 9 ibid is pressed in service in computing the period of 30-days, the day on which the order was passed will the excluded and it will be reckoned from the date succeeding the date of order. In this particular case the injunctive order was passed on 31.01.2024 whereby the operation of the impugned notice was stayed for a period of 30-days. By excluding the day on which the order was passed, such period started on 01.02.2024. The month of February-2024 was comprising 29 days, hence, the order dated 31.01.2024 was to expire on 01.03.2024 but before that the respondent-Department issued the impugned notice dated 01.03.2024 for recovery of impugned demand of income tax to Bank Al-Habib for attachment of the bank account of the petitioner upon which the Bank also transferred the amount of Rs.1,678,081/- in favour of respondent No.3. It is apprised to the Court that petitioner applied for extension of stay which was strongly opposed by the respondents through Mr. Ayaz Nawaz Warraich, DR and the Tribunal while granting an opportunity of hearing extended the already granted stay for further period of 30-days vide order dated 29.02.2024.
8. In view of the above, the stay order dated 31.01.2024 and extended stay order dated 29.02.2024 were in field on 01.03.2024 when the impugned notice was issued, bank account of the petitioner was blocked and amount of Rs.1,678,081/- was transferred in favour of respondent No.3. In these circumstances, this act of the respondent No.3 is illegal, unlawful and ultra-vires which is not sustainable in the eye of law.
9. For the foregoing reasons, this petition is allowed. Consequently, impugned notice dated 01.03.2024 as well as the action of respondents Nos.3 and 4 -qua attachment of the bank account of the petitioner are set-aside. Respondents are directed to refund the amount of Rs.1,678,081/- deducted from the bank account of the petitioner. However, the second appeal filed by the petitioner is still pending before Appellate Tribunal Inland Revenue, who, being the competent Authority, shall decide the fate of the demand of super tax imposed on the petitioner.