1. This writ petition raises an interesting point regarding the availability of the power with the President to entertain and adjudicate upon representation filed against the decision of Federal Tax Ombudsman passed as an appellate authority in terms of section 21 of the Freedom of Information Ordinance, 2002 (the FOI Ordinance). The other issue for determination in this writ petition is whether the recommendations of Alternate Dispute Resolution Committee are excluded documents in terms of section 8 of the FOI Ordinance.
2. The petitioner by having recourse to the provisions of the FOI Ordinance applied to the Chairman, Federal Board of Revenue (the Board), respondent No.2, through letter dated 09.08.2012 seeking information and access to record pertaining to the recommendations issued by Alternate Dispute Resolution Committee (ADRC) constituted under section 134A of the Income Tax Ordinance, 2001 and section 47A of the Sales Tax Act, 1990 and the orders passed by the Board on the said recommendations. As the Board declined to pass the decision on the information sought for, the petitioner lodged a complaint with the Federal Tax Ombudsman (the Tax Ombudsman) under section 19 of the FOI Ordinance. The Tax Ombudsman vide order dated 10.01.2013 directed the Board to provide information/record requested for to the petitioner with a period of 21 days. The Board filed a representation before the President of Pakistan through the Ministry of law on 14.02.2013 under section 32 of the Federal Tax Ombudsman, 2000. The President partially accepted the representation on 14.10.2014 by holding that the record relating to the recommendations of the ADRC will not be provided to the petitioner. The order of Tax Ombudsman was accordingly modified by the President on the following terms.
The upshot of the above discussion is that the subject representation of Agency has been allowed only to the extent of non providing the record relating to recommendation of the respective committees constituted in terms of the above mentioned provision of the tax status. In these circumstances the impugned decision of the learned F.T.O. is modified in the following manner:
(i) FBR is ordered to provide the requester with the information but excluding therefrom the record of recommendations of the said committee, in the format given by him, within 21 days from the date of receipt of this order and requester/complainant should also specify the description of court(s) case in which the information requested is required;
(ii) It is further clarified that requester/complainant does not need to file a fresh application and that an additional application will form part of the original application of August 09, 2012 wherein case details are to be mentioned.”
3. Learned counsel for the petitioner, inter alia, argued that the representation filed by the Board before the President was not valid as no such remedy was provided for by the FOI Ordinance. On merits it was stated that there was no prohibition in the FOI Ordinance for providing the necessary information/documents to the petitioner. Learned counsels for the respondents, on the other hand, stated that representation to the President was permissible in terms of section 32 of Federal Tax Ombudsman Ordinance, 2000 and that that right was reaffirmed in section 14 of the Federal Tax Ombudsman Institutional Reforms Act, 2013. The learned Standing Counsel representing the Federation also took a series of objections by stating that the complaint to the Tax Ombudsman was filed by the petitioner alleging mal-administration under section 3 of the Federal Tax Ombudsman Ordinance, 2000 and that by virtue of section 23 of the Ordinance, the representation before President was thus competent in terms of sections 32 and 37 of the Federal Tax Ombudsman Ordinance, 2000 and sections 14 and 24 of the Federal Tax Ombudsman Institutional Reforms Act, 2013. In this regard reliance was placed on judgments reported as Muhammad Hussain and others v. Islamic Republic of Pakistan PLD 1991 SC 385 and S.M. Rahman & Co. v. Motabar and others PLD 1981 SC 282. It was also urged that the record sought by the petitioner fell in the exclusions contained in section 8 (c), (g) and (h) of the FOI Ordinance and, therefore, the Board was justified in not providing the said record to the petitioner.
4. From the arguments advanced by the learned counsels for the parties, the following issues of law have arisen requiring decision by this Court.
(a) Whether representation by the Board before the President against the decision of the Tax Ombudsman was competent in terms of section 32 of Federal Tax Ombudsman Ordinance, 2000?
(b) Whether the information/documents sought for by the petitioner fall in the exclusions mentioned in section 8 of the FOI Ordinance?
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