Federal Board of Revenue thr. Its Chairman, Islamabad & others vs /s. Hub
This civil petition before the Supreme Court of Pakistan arose from a tax dispute regarding the adjustment of input tax on services against sales tax on services. At the outset, the respondent raised a preliminary objection challenging the maintainability of the petition on the ground that the petitioners bypassed the available statutory remedy of an Intra Court Appeal (ICA) under Section 3 of the Law Reforms Ordinance 1972 before the High Court. The core legal question was whether a direct petition before the Supreme Court is maintainable without exhausting the available ICA remedy in the absence of exceptional circumstances. The Supreme Court upheld the preliminary objection and dismissed the petition as non-maintainable. The Court laid down that bypassing an available ICA is ordinarily impermissible, as the requirement functions as a rule of practice regulating court procedure. Direct petitions are entertained only under exceptional circumstances—such as matters involving critical constitutional interpretation, validity of provincial statutes, or fundamental rights of great public importance with far-reaching consequences—coupled with belated maintainability objections, none of which existed in the present case.
- Is a petition before the Supreme Court maintainable when the remedy of an Intra Court Appeal before the High Court has not been exhausted?
- Under what exceptional circumstances can the Supreme Court entertain a direct petition bypassing an available Intra Court Appeal?
- Does the requirement of exhausting an Intra Court Appeal oust or abridge the constitutional jurisdiction of the Supreme Court?
- Section 3, Law Reforms Ordinance 1972
- The Constitution of the Islamic Republic of Pakistan 1973
ORDER: MR. JUSTICE SYED MANSOOR ALI SHAH (1). The learned counsel for the respondent, at the very outset, raised an objection that the petitioners have filed the instant petition without exhausting the available remedy of filing an Intra Court Appeal ("ICA") under section 3 of the Law Reforms Ordinance, 1972 ("Ordinance") before the High Court, therefore, the instant petition is not maintainable. In support of this contention, the learned counsel has placed reliance on Col. (Retd.)
M.R. Hassan[1], Mst. Karim Bibi[2], Samina Masood[3], Zia Mohy-ud-Din[4], Ilyas Gujjar[5] and Abdul Ghani[6]
2. On the other hand, the learned counsel for the petitioners has also relied on Media Network[7] to contend that the instant petition is maintainable.
3. We have heard the learned counsel for the parties and have gone through the case law with their able assistance. It is settled law that where the right to file an ICA before the High Court under section 3 of the Ordinance exists, then a petition before this Court without exhausting the said remedy, and thereby circumventing the forum below, is ordinarily not maintainable.[8] The requirement of filing an ICA is a rule of practice for regulating the procedure of the Court and does not oust or abridge the constitutional jurisdiction of this Court.[9] Such petitions, however, have been entertained by this Court only when certain exceptional circumstances exist, such as, where the matter involves important questions of law of great public importance having far-reaching consequences[10]', questions of law as to the interpretation of the Constitution[11] and validity of provincial statutes[12], and substantial questions of law involving fundamental rights[13], coupled with the fact that the objection with regards to maintainability is taken at a belated stage before the Court.[14] We note that no such exceptional circumstances exist in the matter at hand and the objection regarding maintainability, of the petition was also duly raised at the first instance.
Reliance on Media Network (supra) by the learned counsel for the petitioners is misconceived as in the said judgment, this Court had noted that the objection as to maintainability was taken at a belated stage and important questions of law of great public importance having far-reaching consequences were involved in terms of selection of cases for audit under a Self-Assessment Scheme and policy guidelines issued by the Central Board of Revenue. Whereas, the present matter relates simply to adjustment of input tax with respect to services received by the respondent against the sales tax on services. Consequently, we find that the instant petition, having been filed without availing the remedy of an ICA before the High Court, is not maintainable.
4. In the light of the above, the preliminary objection raised by the learned counsel for the respondents is upheld and the instant petition is accordingly dismissed being not maintainable.
1. Col (Retd.) M.R. Hassan v. SHO Margalla, Islamabad.1998 SCMR 2738
2. Mst. Karim Bibi v, Hussain Bakhsh, PLD 1984 SC 344
3. PIAC v. Samina Masood, PLD 2005 SC 831
4. Accountant General for Pakistan v. Zia Mohy-ud-Din, PLD 2008 SC 164
5. Ch. Muhammad Ilyas Gujjar v. Chief Election Commissioner, PLD 2011 SC 961
6. FBR v. Abdul Ghani, 2021 SCMR 1154
7. Commissioner of Income Tax v. Media Network PLD 2006 SC 787, 2006 PTD 2502
8. Imtiaz Ali Malik v. Mst. Surrya Begum, 1979 SCMR 22; Ch. Muhammad Ilyas Gujjar v. Chief Election Commissioner PLD 2011 SC 961; Government of Punjab v. Meiropole Cinema. 2014 SCMR 649; Accountant General v. Zia Mohy-ud-Din PLD 2008 SC 164; PIAC v. Samina Masood, PLD 2005 SC 831.
9. PTCL v. lqbal Nasir, PLD 2011 SC 132, Commissioner of Income Tax v Messrs Media Network.
10. Commissioner of Income Tax v Messrs Media Network, PLD 2006 SC 787
11. The Constitution of the Islamic Republic of Pakistan, 1973
12. Province of Punjab v Sargodha Textile Mills PLD 2005 SC 988
13. PESSI v. Manzoor Hussain, 1992 SCMR 441
14. PTCL v Igbal Nasir, PLD 2011 SC 132; Commissioner of Income Tax v Messrs Media Network, PLD 2006 SC 787