Messrs NAFEES DRY CLEANERS, WAHADAT ROAD, LAHORE vs THE GOVERNMENT

This judgment shall dispose of Writ Petitions Nos.23053/2000, 1636/2001, 23048/2000, 23049, 23052/2000, 23054/2000, 23055/2000, 23056/2000, 23057/2000 and 24420/2000, in all of which levy of Sales Tax on the services rendered by the petitioner as Dry Cleaners, by the Punjab Sales Tax Ordinance, 2000, has been questioned on the touchstone of the Constitution.

2. According to the learned counsel for the petitioner the Sales Tax can only be levied by the Federal Government in view of Entry No.49 of the Fourth Schedule to the Constitution read with Article 142 thereof.

3. On the other hand, Mr. Khan Muhammad Virk, Advocate/Legal Advisor of the Sales Tax Department as also Ch. Muhammad Ashraf, learned Assistant Advocate-General, have submitted that levy of the Sales Tax is not covered by Item No.49 of the Constitution, which deals with the taxes on the sales and purchases of goods imported exported, produced, manufactured or consumed and does not cover the services rendered by a person and, as such, it is open to the Provincial Legislature to impose the Sales Tax on the services rendered by any one.

4. In reply learned counsel for the petitioner has urged that the petitioners are being discriminated against in violation of Article 25 of the Constitution as no such tax has been levied on any other services. In the last it was argued that the respondents have acted without any lawful authority in making the recovery in manner contrary to the procedure prescribed by the Sales Tax Ordinance, 2000.

5. None of the contentions raised by the learned counsel for the petitioner have any force. Item No.49 of the Constitution reads as under:- "Taxes on the sales and purchases of goods imported, exported, produced, manufactured or consumed."

On the 'face of it these taxes levy on services rendered by any person are not covered by this provision. It will be appreciated that Item No.49 of the Constitution does not deal with the taxes on services rendered at all. Item No.59 of the Schedule also cannot be relied upon by the petitioner, as it cannot be said that the levy of Sales Tax on services is matter of incidental or ancillary to any matter enumerated in the 4th Schedule of the Constitution.

6. According to Article 142 of the Constitution if a matter is not covered by any entry in the 4th Schedule, it shall be the domain of the Provincial Legislature to legislate on that subject. That being so I am not able to accept the contention raised by the learned counsel for the petitioner that as the Federal Government is empowered to levy tax on the sales and purchases of goods imported, exported, produced, manufactured or consumed, it can also levy tax on services rendered. It is not out of place to mention that the excise duty which was leviable on the Dry Cleaners, has since been withdrawn.

7. So far as the argument that the petitioner has been discriminated against in violation of Article 25 of the Constitution, suffice it is to say that Article 25 of the Constitution prohibits discrimination within a class of persons but does not prohibit the classification as such. The Dry Cleaners are a class apart and they cannot claim that if the Sales Tax is not being levied on the services rendered by some other category of persons they are being discriminated against. The last contention of the learned counsel for the petitioner is again not well-founded. Section 3 of the Punjab Sales Tax Act only made the procedure prescribed by the Sales Tax Act, 1990 applicable for the purposes of assessm ent and recovery of the Sales Tax. This is a procedural provision and does not in any way militate against law.

In view of the above, these petitions have no force and are dismissed without any order as to costs.

M.B.A./N-74/L .