1. The facts, in brief, are that the petitioners are juridical persons and were served with respective notices under sections 122(5-A) read with 122(9) of the Income Tax Ordinance 2001 (hereinafter referred to as the “Ordinance”). The petitioners have assailed the respective notices served on them and have simultaneously challenged the vires of section 122(5-A) and sub section (1), (1-A) of section 210 of the Ordinance.
2. Sardar Ahmed Jamal Sukhera ASC has contended that; the provision of the Ordinance i.e. sections 122 (5-A) and 210 give sweeping and unfettered powers to the Commissioner, and that the same are in violation of the fundamental rights guaranteed under the Constitution; there are no guidelines prescribed for exercising the powers; reliance was placed on 2013 SCMR 1158, particularly page 1195 thereof, to draw a distinction between functions and powers, and thus build an argument that giving unbridled powers offends the Constitutional guarantees; reliance was also placed on PLD 2002 SC 460; sections 210 and 122 are ultra vires on the ground of excessive delegation of legislative power; the notices have been issued by officers, who are not in BS-19 and were appointed Additional Commissioners on officiating basis; the post of Additional Commissioner is of BS-19; the power to issue a Show Cause Notice under Sections 122 (5-A) is vested in an officer of the rank of a Commissioner; any person holding the post of a Commissioner has to be in BS-20; though the Commissioner is allowed to delegate powers to amend an assessment under Section 122(5-A) to an Officer not below the rank of an Additional Commissioner, however, the officer posted as Commissioner in BS-19 is not empowered to exercise the said powers, nor can a Commissioner in BS-20 delegate the powers to an Additional Commissioner who is not in BS-19; the notices have been issued by officers who were not in BS-19, therefore, the powers could not be delegated to them nor were they competent to exercise the powers; Section 210(1) has empowered the Commissioner to delegate to any subordinate officer any or all of his powers; through an amendment, sub Section (1-A) was inserted and it provides that the power of amendment cannot be delegated to a person lower in rank than an Additional Commissioner; through the said amendment the legislature had intended that an officer junior in rank to an Additional Commissioner could not be delegated the power of amendment under Section 122(1-A); the Federal Board of Revenue (hereinafter referred to as the “Board”) has been flouting the legislative intent by posting officers in BS-18 on officiating basis as Additional Commissioners.
The Federal Budget Document establishes that an Additional Commissioner must be in BS-19; the posting of BS-18 officers on officiating basis on the posts of Additional Commissioners is in violation of the Civil Servant Act 1973, read with the Civil Servant Rules, 1973; such practice is in violation of the law laid down by the august Supreme Court of Pakistan in the case of Province of Sindh and others Versus Ghu/am Fareed and others [2014 SCMR 1189]; there is no provision in the Ordinance which empowers the Board to post an officer of a lower grade to a higher grade post on officiating basis; it is for the respondents to explain as to under what legal authority are officers in Bs-18 posted as officers to posts designated for a higher grade; notices issued under Section 122 (5-A) read with Section 122 (9) by officers who are in BS-18, posted as Additional Commissioners, are without lawful authority and jurisdiction and, therefore, null and void; Reliance is placed on the case of Captain Muhammad Azhar Versus (1) Commissioner of Karachi and (2) Province of West Pakistan [PLD 1966 S.C. 253] in support of the contention that incompetently issued notices renders the proceedings without lawful authority; reliance is placed on the case of Zhar Aiam Farooqi, Advocate Versus Sheikh Abdul Sattar Lasi and others [2008 SCMR 240] contending that if a mandatory condition for the exercise of jurisdiction is not fulfilled, it renders the entire proceedings as illegal, and thus suffers from want of jurisdiction; the posting of an officer of BS-19 as Commissioner on officiating basis also renders the proceedings as null and void; a constitutional petition is maintainable against a notice even when an alternate remedy is available, and the same does not suffer for want of jurisdiction; reliance has been placed on the case of Commissioner of Income Tax, Companies-II and another Versus Hamdard Dawakhana (Waf) Karachi [PLD 1992 S.C. 847] and Khaiid Mehmood Versus Collector of Customs, Customs House, Lahore [1999 SCMR 18811: Provisions of Order 7 Rule 7 of the Civil Procedure Code, 1908 (hereinafter referred to as the “Code”) empowers the Court to grant an effective ancillary relief, even if not prayed for.
It is the mandate of Section 122(6) of the Ordinance that the Commissioner, in addition to delegating to the Additional Commissioner the powers to amend an assessment, also has to delegate the power to pass an amended assessment order; there is nothing on record to show that the power of amending the assessment has been delegated to an officer of the rank of Additional Commissioner; the delegation of power under one section will not automatically delegate the ancillary power under a different section which has to be specifically delegated; reliance is placed on the case of Man Jamal Shah Versus The Member Collection Commissioner, Government of Pakistan, Lahore and others [PLD 1966 S.C. 1]; in the case of W.P. No. 583/2014 the Additional Commissioner was not vested with the jurisdiction of amending the assessment order; the earlier petitions i.e. 660 and 138 filed by the PTCL related to notices issued for different years and, therefore, shall not attract the principle of res judicata; reliance has been placed on the case of Mst. Bibi Alam Taj and others Versus Mst. Inayat Begum [PLD 1963 Peshawar 199]; the power of delegation vested under Section 122 is in violation of Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the “Constitution”) as it allows the Commissioner to revise his own order.
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