Federal Board of Revenue through Chairman, Islamabad and others vs M_s. Hub Power Company Ltd and others
The petitioners filed a petition before the Supreme Court without first exhausting the statutory remedy of filing an Intra Court Appeal (ICA) under Section 3 of the Law Reforms Ordinance 1972 before the High Court. The respondent raised a preliminary objection regarding the maintainability of the petition. The core legal question before the Supreme Court was whether a direct petition is maintainable when the remedy of an ICA is available and has been bypassed. The Supreme Court held that where the right to file an ICA before the High Court exists, a direct petition before the Supreme Court without exhausting that remedy is ordinarily not maintainable, as bypassing the lower forum violates a rule of practice regulating court procedure. The Court clarified that such petitions are entertained directly only under exceptional circumstances, such as matters involving substantial questions of law of great public importance, constitutional interpretation, validity of provincial statutes, or fundamental rights, coupled with a belated objection. Finding no exceptional circumstances in a routine sales tax adjustment dispute and noting that the maintainability objection was raised at the earliest instance, the Court dismissed the petition as not maintainable.
- Is a petition directly filed before the Supreme Court maintainable without exhausting the available remedy of an Intra Court Appeal?
- Under what exceptional circumstances may the Supreme Court entertain a petition filed without exhausting the remedy of an Intra Court Appeal?
- Does the rule requiring exhaustion of an Intra Court Appeal before seeking relief in the Supreme Court oust or abridge the Court's constitutional jurisdiction?
- Section 3, Law Reforms Ordinance 1972
ORDER
Syed Mansoor Ali Shah, J.--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. Metropole 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. Iqbal Nasir, PLD 2011 SC 132; Commissioner of Income Tax v. Messrs Media Network, PLD 2006 SC 787.
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. lqbal Nasir, PLD 2011 SC 132; Commissioner of Income Tax v. Messrs Media Network, PLD 2006 SC 787.