UMER FAROOQ SYED vs COMMISSIONER OF WEALTH TAX, LAHORE, and 2
This Constitutional petition was filed challenging an order of the Wealth Tax Officer while an appeal against the same order was already pending before the Commissioner of Income-tax Appeals. The petitioner argued that the petition was maintainable because the appellate forum lacked the specific statutory jurisdiction to grant a stay against tax recovery, rendering the appellate remedy inadequate under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The Court rejected this contention, holding that the petition was premature. The Court affirmed the principle that even in the absence of an express statutory provision, an appellate authority possesses the inherent power to grant interim relief, such as a stay of the impugned order. Consequently, the existence of an appellate remedy, which includes the inherent power to grant interim relief, precludes the invocation of Constitutional jurisdiction at this stage. The petition was accordingly disposed of as premature.
- Is a Constitutional petition maintainable when an appeal against the impugned order is already pending before an appellate authority?
- Does an appellate authority possess the inherent power to grant a stay of recovery in the absence of an express statutory provision?
- Is the lack of an explicit statutory power to grant a stay sufficient to render an appellate remedy inadequate under Article 199 of the Constitution?
- Article 199, Constitution of Islamic Republic of Pakistan, 1973
- Wealth Tax Act, 1963
ORDER
In the Constitutional petition filed by the petitioner, he himself stated that against the impugned order of the Wealth Tax Officer, he has filed appeals, which are pending before the Commissioner of Income-tax Appeals. There is no reason that why the Constitutional petition should have been filed without waiting for the decision of these appeals.
2. Mr. Aurangzeb Mirza, however, states that as the appellate forum has no jurisdiction to grant any stay against the recovery of tax, the remedy of appeal is not an adequate remedy within the meaning of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. This contention is misconceived. Although there is no specific provision in the Wealth Tax Act enabling the Appellate Commissioner to stay the operation of the order impugned before him but it is now well-settled that the appellate authority has inherent power to grant interim relief. Reference may be made to judgment of the Supreme Court in Sindh Employees Social Security Institution and another v.
Adamjee Cotton Mills Ltd. (PLD 1975 SC 32) and Molvi Muhammad Yaqub v. Chairman, Election Tribunal (PLD 1976 SC 625). This petition, at this stage, is premature. It is disposed of accordingly.
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