1. CH. IJAZ AHMAD, J.-I intend to decide the following writ petitions by one consolidated judgment having similar facts and law:- W.P. No. 1970-97 W.P. No. 12635-98 W.P. No. 23488-97 W.P. No. 2198-97 W.P. 974-99 W.P. No. 975-99 W.P. No. 1384-99 W.P. No. 1383-99 W.P. No. 26432-98 W.P. No. 2692-98 W.P. No. 12003-99 W.P. No. 16882-99 W.P. No. 1970-97 Brief facts out of which the present writ petition arises are that the petitioner participated in the open auction held by respondent No. 5 for the collection of goods of exit tax for the period from 1.8.1997 to 31.7.1998. Petitioner's bid was highest amount to Rs.42,05,00,000/- which was confirmed in favour of the petitioner by the respondent. An agreement was executed between the petitioner and respondent No. 5. Petitioner was directed to deposit the necessary including advance income tax at the rate of 5% by virtue of clause 32 of the agreement.
2. W.P. No. 12635-98 Brief facts out of which the present writ petition arises are that the petitioner participated in the open auction held by the respondent for the collection of toll tax at Ravi Bridge at Shahdara and Sagian Bridge for the period from 1.8.1996 to 31.8.1996. Petitioner bid was highest amounting to Rs.9,36,00,000/- which was confirmed in favour of the petitioner by the respondent. Petitioner and respondent No. 6 executed agreement. Petitioner was directed to deposit the necessary amount including advance income tax at the rate of 5% by virtue of the clause contained in the agreement to this effect.
3. W.P. No. 23488-97 Brief facts out of which the present writ petition arises are that the petitioner participated in the open auction held by respondent No. 5 for the collection of goods exit tax for the period from 16.8.1997 to 30.8.1998. Petitioner bid was highest amounting to Rs. 10,00,00,000/-. Petitioner and respondent No. 5 executed agreement. Petitioner was directed to deposit the necessary amount including advance income tax at the rate of 5% as per terms of agreement executed between the parties.
4. W.P. No. 21918/1997 Brief facts out of which the present writ petition arises are that the petitioner participated in the open auction held by respondent No. 5 for the collection of toll tax at Ravi Bridge at Shahdara, Saigian Bridge for the period from 1.7.1997 to 30.6.1998. Petitioner bid was highest amounting to Rs.11,65,00,000/- which was confirmed in favour of the petitioner by the respondent. Petitioner and respondent No. 5 executed an agreement. Petitioner was directed to deposit the necessary amount including advance income tax at the rate of 5% by virtue of the terms and conditions of the agreement executed between the parties.
5. W.P. No. 974-99 Brief facts out of which the present writ petition arises are that the petitioner participated in the open auction held by respondent No. 5 for the collection of goods exit tax for the period from 1.9.1998 to 30.6.1998. Petitioner bid was highest amounting to Rs.8,05,00,000/- which was confirmed in favour of the petitioner by the respondent. Petitioner and respondent executed agreement between themselves. Petitioner was directed to deposit the necessary amount including advance income tax at the rate of 5% by virtue of terms and agreement executed between the parties.
6. W.P. 975/1999 Brief facts out of which the present writ petition arises are that the petitioner participated in the open auction held by respondent No. 5 for the collection of tax on transfer of immovable property for the period from 1.9.1998 to 30.6.1999. Initially petitioner participated in the open auction but subsequently awarded the contract to the petitioner by the respondent through negotiation for amounting to Rs.2,42,61,691/- which was confirmed by the competent authority in favour of the petitioner by the respondent authority. Petitioner and respondent No.5 executed agreement.
7. Petitioner was directed to deposit the necessary amount including advance income tax at the rate of 5% by virtue of terms and conditions of the agreement.
8. W.P. 1384/1999 Brief facts out of which the present writ petition arises are that the petitioner participated in the open auction held by respondent No. 5 for the collection of goods exit tax for the period from 16.11.1998 to 30.6.1999. Petitioner's bid was highest amounting to Rs.5,28,00,000/- which was confirmed in favour of the petitioner by the respondent. Petitioner and respondent No. 5 executed agreement. Petitioner was directed to deposit the necessary amount including advance income tax at the rate of 5% by virtue of the terms and conditions of the agreement.
9. W.P. No. 1383/1999 Brief facts out of which the present writ petition arises are that the petitioner was awarded contract by the respondent No. 5 for the collection of tax on transfer of immovable property for the period 18.12.1998 to 30.6.1999 for Rs.1,73,63,014/-. Agreement was executed between the parties. Petitioner was directed to deposit the necessary amount including advance income tax at the rate of 5% by virtue of terms and conditions of the contract.
10. W.P. No. 26432/1998 Brief facts out of which the present writ petition arises are that the petitioner participated in the open auction held by respondent No. 5 for the collection of goods exit tax for the period from 1.10.1998 to 30.6.1999. Petitioner bid was highest amounting to Rs. 13,00,00,000/-. Petitioner and respondent No. 5 executed agreement between themselves. Petitioner was directed to deposit the necessary amount including advance income tax at the rate of 5%, by virtue of terms and conditions of the agreement.
11. W.P. No. 2692/1998 Brief facts out of which the present writ petition arises are that the petitioner participated in the open auction held by the respondents for the collection of toll tax fee Mari Pattan Bridge for the year 1997-98. Petitioner bid was highest amounting to Rs.724,00,786/- which was confirmed in favour of the petitioner by respondent. Petitioner and respondent executed agreement. Petitioner was directed to deposit the necessary amount including advance income tax at the rate of 5% by virtue of terms and conditions, of the agreement.
12. W.P. No. 12003/1999 Brief facts out of which the present writ petition arises are that the petitioner participated in the open auction held by respondent No. 4 for the collection of toll tax at the new Ravi Bridge for the period from 1.7.1999 to 30.6.2000. Petitioner's bid was highest which was confirmed in favour of the petitioner by the respondent. Petitioner and respondent executed an agreement. Petitioner was directed to deposit the necessary amount including advance income tax at the rate of 5% by virtue of terms and conditions of the agreement.
13. W.P.No. 16882/1999 Brief facts out of which the present writ petition arises are that the petitioner awarded the contract for collection of toll tax at Lahore Link Road Kala Shah Khan and Motorway Bound Traffic by the respondent for a period of six months for total consideration of Rs.20,202,222/- agreement was also executed between the parties. Petitioner was directed to deposit the necessary amount including advance income tax at the rate of 5% by virtue of terms and conditions of the agreement.
2. Mr. Maqbool Elahi Malik, Advocate for the petitioner contended that the lease money being not income as such 5% advance tax as envisaged under sub-section (7- A) of Section 50 of the Income Tax Ordinance, 1979, cannot be claimed from the petitioner, In support of his contention learned counsel has placed reliance upon the interim order passed by the Hon'ble Supreme Court on 10.5.1999 in similar circumstances in Civil Petition No. 533- L/1999. Learned counsel for the petitioner urged that Section 50(7-A) of Income Tax Ordinance, 1979 was added through an Ordinance on 25.6.1981 when the Article 89. Was held in abeyance by virtue of Article 2 of PCO, 1981 which was promulgated on 23.4.1981. The aforesaid addition of sub-section (7-A) of Section 50 of Income Tax Ordinance, 1979 is ultra vires of the Constitution. He further stated that explanation to the aforesaid sub-section (7) of Section 50 of the Income Tax Ordinance, 1979 excluded the petitioner. Therefore, action of the respondent is without lawful authority. He further urged that the petitioner has only the right to collect Goods Exit Tax in terms of the agreement executed between the petitioner and respondent No. 5. Daily collection is deposited with the respondent No. 5 after one month and the said collection is not income of the petitioner. He further urged that tax is always on income and not on investment or expenditure. He further urged that action of the respondent is in violation of Articles 3, 4, 18, 24 and 25 of the Constitution of Islamic Republic of Pakistan and the law laid down by this Court in Zia-Ullah Khan's case (PLD 1989 Lahore 554). In support of his contention learned counsel has placed reliance upon an interim order passed by the Hon'ble Supreme Court on 10.5.1999 in similar circumstances in Civil Petitions Nos.532-L and 533- L/1999.
14. Ch. Muhammad Yaqub, Advocate and other Advocates of the petitioner adopted the arguments of Mr. Maqbool Elahi Malik, Advocate.
3. Mr. Shafqat Mehmood Chohan, Advocate for respondents submits that contention of the learned counsel for the petitioners are not sustainable in the eyes of law as the law laid down by the superior Courts qua the controversy in question. He relied upon un-reported judgment of the Division Bench of this Court passed in W.P. No. 16358/1997 on 24.9.1998 in which the similar controversy was raised and repelled by the Division Bench in the aforesaid writ petition. He also relied upon Muhammad Ansar, etc. Vs. Administrator Town Committee Kabirwala, District Khanewal and 4 others ((2O0O) 81 Tax 60 (H.C. Lah.)) and Bismillah and Co. Vs. Secretary, Government of the Punjab, etc. (1997) 75 Tax 109 (H.C. Lah). He also relied upon un-reported judgment of this Court in W.P. No. 26364/1998 which was decided on 25.1.2000. He further submits that ing order is not judgment as the controversy between the parties has not been finally decided by the Hon'ble Supreme Court. He further relied upon PLJ 1975 S.C. 21 (Adam Khan Mirza Vs. Muhammad Sultan).
4. I have given my anxious consideration to the contention of the learned counsel for the parties and perused the record, It is admitted fact that petitioner executed agreement with the respondent No. 5 of his own free-will which contains the arbitration clause. Therefore, writ petition is not maintainable as the principle laid down by the Hon'ble Supreme Court in the following judgments:- 1994 SCMR 1884 (Ali Sher \/s. The State)
15. 1999 SCMR 121 (Murad Ali and Companies Case).
16. On the basis of the law laid down by the Hon'ble Supreme Court in present of Arbitration Clause in the agreement executed between the parties, the writ petition is not maintainable. The writ petition is also not maintainable on the well-known principle of approbate and reprobate. I am fortified by the judgment of the Hon'ble Supreme Court in Ghulam Rasool's case (PLD 1971 S.C. 376). It is also settled proposition of law that the contract cannot be enforced through Constitutional jurisdiction as the petitioner has alternative remedies either to file a civil suit or invoke arbitration clause as mentioned above. I am fortified by the following judgments:- 1981 SCMR 604 (Shameer Vs. Board of Revenue)
17. PLD 1986 Quetta 181 (Pakistan Mineral Development Authority Vs. Pakistan Water and Power Development Authority)
18. PLD 1958 S.C. 267 (The Chandpur Mills Ltd.'s case)
19. PLD 1962 S.C. 108 (M/s. Momin Motor Company Vs. The Regional Transport Authority)
20. The present controversy has also been finally decided after examination of the relevant provisions of Income Tax Ordinance, 1979 in the following cases:- 1997 PTD 747 (Bismillah and Co. Vs. Secretary, Finance Government of Pakistan)
21. The aforesaid proposition of law is also supported by the following judgments:- 1985 PTD 787 (Rehman Corporation, Hyderabad Vs. The Income-Tax Officer).
22. 1989 PTD 1048 (Trustees of the Port of Karachi Vs. Central Board of Revenue).
23. NLR 1995 Tax (Lahore) (idara-e-Kissan Vs. Registrar of Trade Union, etc.).
24. PLD 1984 Lahore 345 (Muhammad Yunus Vs. Chairman Municipal Committee Sahiwal). through Secretary Finance, Islamabad Textile Mills, Mandiwaila Mauser M/s. Sh. Spinning Mills and another Vs. Federation of Pakistan).
25. (1997) 75 Tax 109 (H.C. Lah.) (Bismillah and Company's case).
26. (2000) 81 Tax 60 (H.C. Lah.) (Muhammad Ansar's case).
27. 1985 PTD 787 (Rehman Corporation Hyderabad Vs. Income Tax Officer Mirpur Khas).
28. 1990 MLD 869 (Pir Muhammad Vs. Government of Sind).
29. Un-reported judgment of the Division Bench consisting of Mr. Justice Ihsan-ul-Haq Chaudhery and Mr. Justice Sayed Najam-ul-Hassan Kazmi in W.P. No. 16358/1998, decided on 24.9.1998.
30. Un-reported judgment of Single Judge in W.P. No. 26364/1998, decided on 25.1.2000.
31. It is also settled proposition of law that ing order by the Hon'ble Supreme Court is not judgment as the law laid down by the Hon'ble Supreme Court in Khairullah's case (1997 SCMR 906). The other contention of the learned counsel for the petitioner that Section 50 (Section 7-A) is ultra vires of the Constitution has no force as the law laid down by the Hon'ble Supreme Court in the following judgments:- PLD 1988 S.C. 416 (Miss Benazir Bhutto's case).
32. PLD 1989 S.C. 26 (Malik Ghulam Mustafa Khar's case).
33. In view of what has been discussed above, the writ petition is not maintainable and the petitioner has alternative remedies more than one as the law laid down by the Hon'ble Supreme Court in Muhammad Ismail's case (PLD 1996 S.C. 246). I have already dismissed the writ petitions qua the similar controversy on the question of law in Muhammad Ansar's case supra (2000) 81 Tax 60 (H.C.
34. Lah.), It is settled proposition of law that previous decision should have been accepted as binding on me as per principle laid down by the Hon'ble Supreme Court in Muhammad Muzaffar Khan Vs. Muhammad Yousaf Khan (PLD 1959 S.C. (Pakistan) 9.
5. In view of what has been discussed above, these writ petitions have no merit and the same are dismissed.