Through this Constitutional petition the provisions of sections 129 and 130 of the Income Tax Ordinance, 1979 as amended by Finance Act, 1994 have been challenged. Subsection (2) of section 129 makes the right of first appeal conditional to payment of not only the admitted tax liability but also 15% of the amount of tax assessed. Likewise the provisions of section 130, at the relevant time, provided for payment of a fee of Rs.2,500 for filing of appeal to the Income Tax Appellate Tribunal.
That amount was subsequently reduced to Rs.1,000 or 10% of the tax levied whichever was less.
2. Learned Counsel for the petitioner asserts that both the aforesaid provisions have negated the right of appeal of an assessee or at least had made its exercise difficult by an assessee. These provisions are stated to be unlslamic, confiscatory and unreasonable. Therefore, according to the learned counsel these need to be struck down in the light of the authoritative pronouncement made by this Court, Federal Shariat Court and the Karachi High Court, in judgments reported as Maple Leaf Cement Factory v. Col. CE .& ST (1993 MLD 1645), re: Dr. Hameed Ahmad Ayaz v.
Government of Punjab (PLD 1997 Lahore 434), re: Ayaz Textile Mills Ltd. v. Federation of Pakistan (PLD 1993 Lahore 194), re: Dr. Mahmood ur Rehman Faisal v. Secretary, Ministry of Law (PLD 1992 FS.0 195) and re: Sindh High Court Bar Association Karachi v. The Islamic Republic of Pakistan (PLD 1991 Karachi 178).
3. Learned Counsel for the respondent-revenue, however, relies upon a recent judgment of this Court recorded on 22-4-2002 in Writ Petition No. 5838 of 2002 re: Chaman Milk Shake Ice Cream v.
CIT Lahore etc. To contend that the Legislature being competent to give or take away right of appeal can very well make such a right conditional with payment of fee or part of the tax assessed.
4. I will agree. The issue in hand already stands resolved by way of the aforesaid judgment relied upon by the Revenue. In that case the assessee had challenged the payment of 15% of the demand created at the time of filing of first appeal and had placed reliance on the judgment of this Court cited as re: Messrs Chenab Cement Product (Pvt.) Ltd. v. Banking Tribunal Lahore (PLD 1996 Lahore 672) and re: Messrs Sonia Silk, 108-Anarkali v. The Central Board of Revenue (2001 PTD 1789). While both the judgments were distinguished in the light of the facts before the Court and reliance was placed upon a judgment of the Supreme Court of Pakistan ,n re: Messrs Elahi Cotton Mills Ltd. And others v. Federation of Pakistan (PLD 1997 SC 582). In that judgment their Lordships observed that a tax policy in its operation may result in hardship or advantage or disadvantages to individuals-assessee which are incidental and unavoidable. Their Lordships were further of the view that such a situation simplicitor will not constitute violation of any fundamental right, and that in the case of interpretation of law pertaining to economic activities the provisions should be viewed with greater latitude than the laws relating to civil rights such as freedom of speech, religion etc.
5. It has not been denied at the bar that the legislature was competent to make the aforesaid provisions. Learned counsel for the Revenue is, therefore, correct in pointing out that Legislature while being competent to provide a right of appeal is very well-competent to make it subject to any reasonable condition. The exercise of right of B appeal even when seen in the light of the aforesaid conditions laid down in sections 129 and 130 of the Income Tax Ordinance, 1979 cannot be said to have been abridged or made illusory. Also in my view these conditions are neither confiscatory nor unreasonable or impossible to be complied with. The case-law cited upon at the bar by the learned counsel for the petitioner is clearly distinguishable when seen in the perspective of the judgment of the Hon'ble Supreme Court of Pakistan re: Messrs Elahi Cotton Mills Ltd. (supra).
In such situation in my view only an appeal to the Legislature is the answer to the grievance.
6. That being so far the various reasons detailed in the aforesaid judgment of this Court re: Chaman Milk Shake Ice Cream, I will refuse to entertain the petition.
7. Dismissed in limine. .