PAKISTAN RAILWAY ADVISORY AND CONSULTANCY SERVICES vs ASSISTANT COMMISSIONER Ss

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PAKISTAN RAILWAY ADVISORY AND CONSULTANCY SERVICES VS ASSISTANT COMMISSIONER Ss. 133, 134a(2), 134a(11) & 134a(5), second proviso---State-Owned Enterprise (SOE) aggrieved of an order passed by Commissioner-appeals---appellate remedies, availing of---Whether an appeal before the appellate Tribunal, or a Reference before the High Court---Held: Reference application was filed by Pakistan Railways advisory and Consultancy Services, a State-Owned Enterprise (SOE), as appellate Tribunal Inland Revenue ('the appellate Tribunal') proceeded to dispose of appeals of the applicant/SOE, against the order passed by Commissioner-appeals, being not maintainable---Validity--- Second proviso to subsection (2) of S. 134a ('the proviso-under-examination') of the Income Tax Ordinance ('the Ordinance 2001') explicitly recognizes the right of a SOE to avail appellate remedies in appropriate forums; it stipulates that the SOE is legally competent to file an appeal before the appellate Tribunal, or to file a reference before the High Court, or to submit a petition for leave to appeal before the Supreme Court of Pakistan, as the circumstances may warrant, however, said right is specifically exercisable in situations where subsection (11) of S. 134 of the Ordinance, 2001 is attracted--- In other words, the appellate remedies provided in the proviso-under-examination are contingent upon the applicability of subsection (11) of S. 134a of the Ordinance 2001, which is the triggering provision that confers the jurisdictional foundation for such proceedings---The phrase "as the case may be" signifies that the remedy to be pursued by the SOE depends upon the forum appropriate to the stage and nature of the dispute and the selection of the appellate forum must be in strict accordance with the statutory hierarchy and remedies provided under the law---In short, the proviso-under-examination safeguards the right of appeal subject to the condition that the case falls within the ambit of subsection (11) of S. 134a of the Ordinance 2001, thereby ensuring that such proceedings are not initiated arbitrarily but in accordance with the statutory framework---Legislative scheme, as reflected from a conjoint reading of the proviso-under-examination and subsection (11) of S. 134 of the Ordinance, 2001, envisages a structured dispute resolution mechanism with a defined timeline and mandates that where the Committee, constituted under subsection (5) of S. 134a of the Ordinance, 2001, fails to render its decision within a statutory period of sixty (60) days, the Federal Board of Revenue ('Board') is duty-bound to dissolve the Committee through a written order---Upon such dissolution, the authority to adjudicate the dispute is transferred to the court of law or the relevant appellate forum where the matter is already pending or subsequently pursued under litigation---The proviso-under-examination further supplements said procedure by safeguarding the appellate rights of a SOE; it provides that in cases where said subsection (11) applies, that is, where the Committee stands dissolved due to inaction, the SOE retains an unequivocal right to file an appeal before the appellate Tribunal, or to submit a reference to the High Court, or to file a petition for leave to appeal before the Supreme Court, as may be appropriate to the stage of the proceedings---The expression "as the case may be" indicates that the choice of the appellate forum must strictly correspond with the statutory stage of the case and the forum designated by the applicable procedural laws---When a statute or procedural framework prescribes a sequence of remedies, the parties are bound to exhaust such remedies in the order in which they are provided---The scheme of the law does not permit a party to bypass the statutory sequence or to approach a higher forum without first availing the remedy before the subordinate or initial forum---The proviso-under-examination evidently prescribes a sequence by first approaching the appellate Tribunal, then to the High Court in a tax reference in terms of S. 133 of the Ordinance 2001 and then to the Supreme Court where subsection (11) of S. 134a of is applicable---In the present case, admittedly, the Committee, appointed under subsection (5) of S. 134a of the Ordinance, 2001, had failed to decide the matter within prescribed time, thus, the proviso-under-examination (i.e. second proviso to subsection (2) of S. 134a of the Ordinance, 2001) was squarely applicable as the applicant/SEO challenged the order of the Commissioner-appeals before the appellate Tribunal which was the next higher forum for deciding the issue keeping in view the sequence of hierarchy and procedure applicable in terms of the proviso-under-examination---Thus, the appeals of the applicant / SEO before the appellate Tribunal were maintainable---High Court set- aside the impugned order passed by appellate Tribunal; as a sequel, the appeal preferred by the applicant / SEO would be deemed to be pending before the appellate Tribunal, which would decide the same afresh---Reference application, filed by State-Owned Enterprise, was allowed accordingly.

PAKISTAN RAILWAY ADVISORY AND CONSULTANCY SERVICES vs ASSISTANT COMMISSIONER Ss — 2025 PTD 1596 LAHORE-HIGH-COURT-LAHORE

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