JUDGMENT SALEEM AKHTAR (R), J. -- This is a review application filed by the Revenue Division regarding the findings/decision dated 12.9 2001 in Complaint No. 1209-L/2001 in the case of M/s National Engineering Services Pakistan (Pvt.) Ltd. (NESPAK), a shareholder company -of M/s. Corporation House (Pvt) Ltd., Lahore, In the said findings/decision it had been found that the Revenue Division had acted in an illegal N.E.S., Pak. (Pvt.) V. Secry. Rev. Division Tax & Corp. 37 (Saleem Akhtar (R), J.) manner by effecting recovery of Rs.4.1 million from the complainant, NESPAK u/S. 31A of the Wealth Tax Act against the wealth tax demand outstanding against Corporation House Ltd. When the latter company owned a very valuable piece of property and it could not, therefore, be said that recovery was not possible from it. It had thus been recommended that the wealth tax recovered from the complainant be refunded to it. In the review application it has been prayed that the findings/disicion dated 12.9.2001 may be recalled on the basis of the following grounds:
(i) M/s: Corporation House (Pvt.) Ltd. Is liable to pay wealth tax amounting to R.15,866,264/-.
(ii) 25% of the shares of M/s. Corporation House are held by each of the companies, M/s. National Engineering Services Pakistan (Pvt.) Ltd. (NESPAK), M/s. National Fertilizers Corporation Ltd.,. M/s. Pak Arab Refinery Ltd. And M/s. State Cement Corporation Ltd.
(i.e) The Tax Department initiated, recovery proceedings against M/s. Corporation House but no funds were available with the said company from which the arrears could be realised. Recovery proceedings were, therefore, taken against the Share-holders of M/s. Corporation House u/S 77(2) of the Income Tax Ordinance and Section 31A of the Wealth Tax Act after obtaining requisite approval of the Commissioner.
(iv) The share-holder companies were duly intimated vide letters dated 20.6.2000, and 28.6 2000 that they were responsible for payment of the wealth/tax arrears and it is significant that none of the Share-holders contested the treatment at that time. The conduct of the Share-holders amounted to. Their consent/acquiescence/waiver,. Which fact has not been appreciated in the decision/'findings.
(v) The complainant, NESPAK was estopped to challenge the recovery, being admittedly shareholder of. M/s. Corporation House (Pvt.) Ltd. By its conduct and law.
(vi) In the findings/decision.The action of the competent authority was wrongly held to be unlawful whereas It was initiated after completion of the due process strictly in accordance with law-and procedure.
(vii) It is not at all discussed in the findings/decision as to the amount for recovery of admitted arrears against Corporation House and in such circumstances the recovery from Share-holders in the absence of funds of Corporation house was legal.
(viii) This Office had exceeded its jurisdiction while adjudicating in the complaint against the action of the revenue authorities which did not fall within the purview of "mal-administration".
(ix) This Office acted beyond the statutory provisions while interpreting the law which was excluded from its jurisdiction and the implications of Section 9 of the Establishment of the Office of the Federal Tax Ombudsman Ordinance, 2000 had not been appreciated in this regard.
(x) One of the Share-holders, M/s. National Fertilizer Corporation Ltd. Had filed a writ . Petition challenging the action of the revenue authorities which was still pending in th Lahore High Court.
The writ was filed by N.F.C. On 17.7.20.01 while the complaint was filed NESPAK on 26.7.2001. It has been prayed that the findings/decision dated 12.9.2001 may. Be reviewed/recalled and NESPAK's complaint be dismissed.
2. The representatives of the applicant have been heard. During the hearing the following additional ground was also submitted.
"After recovery of the amount u/S. 31A of the Wealth Tax Act, the Recovery Officer has no power to refund it to the Share-holders as the recovery is deemed to be payment on behalf of the defaulter and the matter becomes past and closed. Any refund is to be made to the defaulter if law so requires and the defaulter has to pass it bn the share-holder from whom recovery was made."
3. The applicant's representatives gave arguments in support of the various grounds which are discussed in. The paras to follow: Ground No. (x) as perpara 1 above.
4. The first arguments taken-up by the representatives of the applicant were in the context of ground No, (x) indicated in para 1 above, It was contended that jurisdiction of this Office was ousted in the case because another share-holder in Corporation House Ltd. Viz. M/s. National Fertilizer Corporation Ltd. Had filed a writ petition in Lahore High Court on 17.7.2001 on the same points as contained in the complaint filed by NESPAK, In this connection reference was made to Section 9(2)
(a) of the Establishment of the Office of the Federal Tax Ombudsman Ordinance, 2000 which reads as imder:-
(2) The Federal Tax Ombudsman shall not have jurisdiction to investigate or inquire into matters which:
(a) are sub judice before a Court, of competent jurisdiction or Tribunal or board or* authority on the date of the receipt of a complaint, reference or motion by him: It was argue that at the time of filing of the complaint the "matter" was sub judice before the Lahore High Court in a writ petition, It was contended that it was not necessary that the writ petition should have been field by the complainant company itself because the words used in Section 9(2) are "investigate or inquire into matters", It was contended that though it was true that the complainant company had not filed the writ petition, the "matter" as such was sub judice before the Lahore High Court since it had been raised by a co-share-holder, It was stated that the matter related to the recovery of wealth tax arrears of Corporation House from its share-holder and this "matter" was sub judice on the date of filing of the complaint.
5. It was further argued that the spirit of Section 9(2)(a) of the Ordinance is that administrative or executive determination is to yield to judicial determination and, therefore, executive determination should not preempt or anticipate judicial determination. Thus, if the Lahore High Court did not accept NFC's plea, an anomalous situation was bound to arise, It was also contended that it was the responsibility of the complainant to inform this Office that a writ petition had been filed by a co-shareholder on the same issue and if this information had been provided by the complainant, the findings of this Office would have been quite different. Reference was also made to the Supreme Court judgments reported as 1993 SCMR 1513 and PLD 1998 SC 363. A reference was further made to clause (b) of Section 9(2) of the Ordinance and it was contended that the scheme of this clause also was that where judicial or quasi- judicial interpretation was possible, the jurisdiction of this Office was ousted.
6. The complainant's contentions have been considered but have not been found to be valid for the following reasons:-
(i) As discussed above the applicant referred to the words "investigate or inquire into matters" in Section 9(2) of the Ordinances show that it was not necessary that the complainant's on case should be sub judice before a Court for the jurisdiction of this Office to be ousted but that if the same "matter" was sub judice in any other case, the jurisdiction of this Office would still be ousted.
This contention is, however, quite untenable, It is evident in fact that the applicant has not considered sub-section (2) of Section 9 in its proper context and has taken certain words from the sub-section out of their proper context, In this connection the contents of sub-section (1) of the said Section 9 are . Important which suu-section reads as under:- "(1) Subject to sub-section (2), the*Federal Tax Ombudsman may on a complaint by any aggrieved person, or on a reference 'by the President, the Senate or the National Assembly, as the case may be, or on a motion of the Supreme Court or a High Court made during the course of any proceedings before it or of his on motion, investigate any allegation of mal-administration on the part of the Revenue Division or any Tax Employee."
It is obvious that the word "matters" has been used in subsection (2) in the context of any of the matters referred to in sub-section (1), viz. Matters pertaining to a complaint by an aggrieved person or matters pertaining to a reference or motion referred to in the said sub-section, It is also obvious from sub-section (1) that the matter must be related to a specific allegation of mal- administration on the part of the Revenue Division or a tax employee. Thus the matters referred to in sub-section (1) obviously relate to a specific allegation of mal-administration in a complaint, reference or motion and the word "matters" in sub-section (2) relates to the matters referred to in sub-section (1) involving a specific allegation of mal-administration. The word "matters" in subsection (2) can, therefore, not be considered to pertain to a matter which is not referred to in sub-section (1) or to another case not referred to in the said sub-section. Thus the fact that M/s. National Fertilizer Corporation (NFC) had statedly filed a writ petition before the Lahore High Court which involved the same issue can in no way oust the jurisdiction of this Office in the complaint filed by NESPAK.
(ii) It. Can also not be accepted that if this Office was aware of the filing of the writ petition by National Fertilizer Corporation (NFC) the outcome ot NESPAK's complainant would have been different. In fact the applicant has not been able to properly collaborate as to what different outcome was likely. If the applicant, however, meant that the investigation would have been held in abeyance till the decision by the Lahore High Court on NFC's writ petition this certainly would be a mere presumption, It must be noted that the Establishment of the Office of the Federal Tax Ombudsman Ordinance, 2000 envisages a speedy disposal of complaints, references or motions and proceedings under the Ordinance are not normally kept in abeyance in- such situations since this would unnecessarily jeopardize- the interest of the complainant. Again there was no question of dismissing NESPAK's complaint in view of this discussion at (i) above.
(i.e) The applicant's reference to Supreme Court Judgment reported as 1993 SCM R 1523 is also not much to the point. The applicant has referred to the dictum alluded to by the Hon'ble Supreme Court in. Para 9 of the judgment viz. "what is excluded by express words could not be included on any principle of interpretation", It was argued that since the jurisdiction of this- Office was specifically excluded under 'Section 9(2) of the Ordinance it cannot be assumed through any interpretation of the statute. It has, however, been discussed at (i) above, that jurisdiction of this Office was not ousted in terms of Section 9(2)(a) of the Ordinance. As regards the provisions of Section 9(2)(b) these were referred to here in order to strengthen the argument that where judicial pronouncement was possible, so-called administrative findings should not pre-empt the said pronouncement. The matter has already been discussed at (i) above and the distinction between administrative findings and judicial pronouncement is also riot relevant in the context of the powers exercised under the Establishment of the Office of the Federal Tax Ombudsman, 2000.
These powers are exercised in cases of "mal-administration" which by definition includes any decision or act which is contrary to law or is arbitrary or unjust, In the instant case it had been seen that on the facts of the case the action of the applicant was contrary to law and was obviously unfair and unjust to the complainant. Under the circumstances there can bd no valid argument oh behalf of the applicant to show that the jurisdiction of this Office was excluded in the case.
(iv) As regards trie Supreme Court judgment reported as PLD 1998 SC 363 the applicant's representative referred to the findings of the Honorables Supreme Court that a party had the right to apply for review by the Supreme Court if he was aggrieved by the order on three grounds viz. Discovery of newt and important matter or evidence which despite due diligence could not be produced by him at the relevant time; or on account of some mistake or error apparent on the fact of the record or for any other sufficient reason. A reference was further made to the following principles relating to review of Supreme Court judgments as contained in the said case.
(i) That every judgment pronounced by the Supreme Court is presented to be a considered, solemn and final decision on all points arising out of the case;
(ii) That if the Court has taken a conscious and deliberate decision on a point of fact or law, a review petition will not lie; (i.e) Th&t the fact the view canvassed in the review petition is more reasonable than the view found favour with the Court in the judgment/order of which review is sought, is 'not sufficient to sustain a review petition;
(iv) That simpliciter the factum a ' material irregularity was committed would not be sufficient to review a judgment/order but if the material irregularity was of such a nature, as to convert the process from being one in and of justice to a process of injustice, a review petition would lie;
(v) That simpliciter the fact that the conclusion recorded in a judgment/order is wrong does not warrant review of the same but if the conclusion is wrong because something obvious has been overlooked by the Court or it has failed to consider some important aspect of the matter, a review petition would lie;
(vi) That if the error in the judgment/order is so manifest and is floating on the surface, which is so material that had the same been noticed prior to the rendering of he judgment, the conclusion would have been different, in such a case a review petition would lie;
(vii) _ That the power of review cannot be invoked as a routine matter to rehear a case which has already been decided nor change of a counsel can be passed into service where a glaring omission or patent mistake has crept in earlier by judicial fallibility;
(viii) That the Constitution does not place any restriction on the power of the Supreme Court to review its earlier decisions or even to depart from them nor the doctrine stare decisis will come in its way so long as review is warranted in v;e of the significant impact on the fundamental rights of citizens or in the interest of public good; .
(ix) , That the Court is competent to review its judgment/order suo motu without any formal application.
7. It is obvious, however, that the principles laid down in Supreme Court judgment do not help the applicant's case. It is in fact obvious that a conscious and deliberate decision on a point of fact pr law is not normally open to review and that the power of review cannot be invoked as a routine matter to rehear a case which has already been decided. The applicant's representative, however, referred to the principles at (v) and (vi) above, in support of his arguments. These principles have:< however, no bearing on the case as there was nothing obvious, which had been over looked nor had there been any failure to consider an important aspect of NESPAK's case, It has already been observed above, that even if the filing of a writ petition by NFC were in the. Knowledge of NESPAK or the applicant and it had been brought to the notice of this Office at the time of hearing of NESPAK's complaint it would have affected the findings/decisions.
Grounds Nos. (iv) & (v) as per para 1 above.
8. In the context of grounds (iv) and (v) referred to in para 1 above, it was contended that NESPAK should have objected when the department's intention to recover the outstanding tax against Corporation House from NESPAK was conveyed by the Deputy Commissioner of Income Tax/Wealth Tax vide his letter No. 699/02, dated 20.6.2000. It was argued that since no reply was given by NESPAK to this letter it was estopped from filing a complaint in this Office This contention of the applicant is, however, also not acceptable for the reasons given below:
(i) Letter No. 699/02, dated 20.6.2000 issued by Deputy Commissioner to NESPAK was defective and though the wealth tax demand of Rs. 14,502,510/- was stated' to be outstanding against M/s. Corporation House action was proposed to be taken u/S. 77(2) of the Income Tax Ordinance, It was also specifically stated that statutory approval of the Commissioner had been obtained under the said Section 77(2). Subsequently, however, action was taken u/S. 31A of the Wealth Tax Act which was the relevant provision not mentioned in the notice. Since the letter/notice referred to by the applicant was itself defective and did not indicate the provisions of the Wealth Tax Act under which, action was subsequently taken, NESPAK's alleged lack of response to the defective notice could not be considered to curtail its right to challenge the validity of subsequent recovery of tax u/S. 31A of the Wealth Tax Act:
(ii) Section 31A of the Wealth Tax authorizes recovery of wealth tax outstanding against a company from its share-holders if it cannot be recovered from the company. Thus a necessary condition for such recovery as require by law is that the recovery should not be possible from the company, In the findings/decision dated 18.9.2001 it was observed that this basic condition of law was not met in the case since M/s. Corporation House held a very valuable property in Lahore and in the pursuance of this property it could not be said that tax could not be recovered from them. Thus the action taken by the applicant was found contrary to law and it is an accepted principle that there is no estopped against the statute. For instance in "Maxwell on .The Interpretation of Statutes" by P.St. J. Langan (Twelfth Edition) Lord Parker, C.J. Has been quoted as follows: "Estopple cannot operate to prevent or binder the performance of a statutory duty or the exercise of a statutory discretion which is , intended to be performed or exercised for the benefits of the public or a. Section of the public".
The principle that there can be no estoppel against a statute has also been recognized in several .Court decisions including the Supreme Court judgment in Ocean Industries Ltd. v. IDBP, reported as PLD 1966 SC 738. Thus as the action taken by the applicant was contrary to Jaw, there can no estoppel against the complainant's right to challenge the said action.
(i.e) The principle involved in the concept of estoppel is that if a person causes another person to act in a particular manner on the basis of any declaration or action, that declaration or action cannot be repudiated by the first mentioned' person to the detriment of the second mentioned person. Such a situation did not. Obviously exist in NESPAK's case.
In the light of the above the plea relating to estoppel is also found to be without substance.
Ground No. (vii) as per para 1 above.
9. It was argued in context of this ground that the words used in Section 31A of the Wealth Tax Act viz.' "cannot be recovered" (from the defaulting company) give the discretion to the Assessing Officer to determine whether it was possible to make the recovery of the outstanding tax from the defaulting company or not. It was contended that no intervention was called for from this Office regarding this discretion of the Assessing Officer.
10. This argument is also quite unacceptable because the relevant law and rules provided that if tax is not paid by the defaulter it can be recovered through disposal of the defaulter's property, It is an admitted fact that Corporation House possesses a very valuable piece pf immovable property and the tax against it (which in fact consists of wealth tax imposed on the property) can be realized through sale/auction of the said property. Thus it can in no way be said that the tax cannot be recovered from Corporation House, In view of this position d patently incorrect assumption that the wealth tax could not be recovered from the defaulting company definitely called for intervention under the F.T.O. Ordinance.
This ground, therefore, stands rejected.
Ground No. (viii) as per para 1 above.
11. It was contended that no mal-administration was involved in the case and that the department nad acted in good faith and according to its interpretation of law. In this connection reference was made to the definition of "maladministration" in Section 2(3)(i)(a) of the Ordinance which reads as under:- "(3) "mal-administration includes,--
(i) a decision, process, recommendation, act of omission or commission which--
(a) is contrary to law, rules or regulations or is a departure from established practice or procedure, unless it is bona fide and for valid reasons."
It was contended that the action was bona fide and for valid reasons and did not, therefore, fall within the definition of "mal-administration."
12. This argument is also without substance because even if no mala fide on the part of the officer(s) was involved, the action taken was obviously not for valid reasons as has already been discussed in detail above. Furthermore, the definition in Section 2(3)(i)(b) was also relevant in the case as the action was perverse, unreasonable, unjust and oppressive in so far as recovery of tax had been made from th^ complainant in violation of the provisions of Section 31A of the Wealth Tax Act, when actually the tax could have been recovered from the defaulting company.
This ground is, therefore, also rejected.
Ground No. (ix) as per para l above.
13. The contention that findings/decision dated 18.9.2001 involved interpretation of law and was thus contrary to the provisions of Section 9(2)(b) of the Ordinance is also not at all valid because -the provision of law contained in Section 31A of the Wealth Tax Act is quite clear and unambiguous and the finding was, therefore, given that the concerned officer had been acted in violation of this provision. No interpretation of law as involved in the case and this ground is also, therefore, rejected.
Additional Ground as per para 2 above.
14. This matter has already been discussed in para 6 of the findings/decision dated 12.9.2001 and no new point has been raised by the applicant to call for a review. This ground also, therefore, stands dismissed.
15. As a result, the review application has not been found to be acceptable and it, therefore, stands rejected.