IN THE HIGH COURT OF SINDH AT KARACHI

PRESENT:

     Mr. Justice Aqeel Ahmed Abbasi

      Justice Mrs. Rashida Asad

C. P. No.D-1173 of 2021

M/s. SIZA Food (Pvt.) Limited……………………………………….Petitioner

Versus

The Federation of Pakistan & 3 others……..…………………..Respondents

Petitioner                   :           Through Syed Irshad-ur-Rehman, Advocate

                                    :           Nemo for the Respondents

Date of Hearing        :           16.02.2021

Date of Short Order :           16.02.2021

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O R D E R  

            Through instant petition, the petitioner has impugned a Show Cause Notice dated 01.02.2021 issued by the Deputy Commissioner Inland Revenue, Audit Unit – 03,  Audit-II, Large Taxpayer’s Office, Karachi under Section 11(2) of the Sales Tax Act, 1990 for the period from January 2016 to December 2016, for having been issued without lawful authority. According to learned counsel, the petitioner’s business falls within the ambits of services covered under the Sindh Sales Tax on Services Act, 2011, therefore, cannot be subjected to tax on supplies under the Sales Tax Act, 1990.

2.         From perusal of the record and the contents of the impugned Show Cause Notice, it appears that the petitioner was earlier confronted by the respondents through Show Cause Notice, requiring the petitioner to submit its explanation with regard to the nature of business activity and taxability under the Sales Tax Act, 1990. Whereas, in response to such notice, reply was furnished by the petitioner and, thereafter, the aforesaid impugned notice has been issued in continuity of the earlier proceedings, however, no adverse order has been passed against the petitioner, whereas, petitioner is at liberty to submit a detailed response to the impugned Show Cause Notice while explaining the nature of business activity and could have raised all factual and legal grounds as agitated through instant petition, instead of approaching this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.   

3.         The practice of approaching this Court by filing Constitutional Petition under Article 199 of the Constitution, while abandoning the statutory forums provided for resolution of the dispute and redressal of the grievances by filing an Appeal before the relevant statutory forums provided under the law, has been seriously deprecated through various judgments of this Court as well as by the Hon’ble Supreme Court in large number of cases, as it amounts to frustrate the legal proceedings before the Tax Authorities, who are under legal obligations to pass appropriate order in accordance with law. Moreover, on mere issuance of Show Cause Notice, which prima facie does not suffer from any jurisdictional defect or patent illegality Constitutional Petition is not maintainable. Reliance in this context can be placed in the cases of Roche Pakistan Ltd. v. Deputy Commissioner of Income Tax and others [2001 PTD 3090]; Sitara Chemical Industries Ltd. v. Deputy Commissioner of Income Tax [2003 PTD 1285]; Pakistan Mobile Communications Ltd. v. Sindh Revenue Board and 2 others [2014 PTD 2048]; and Messrs Maritime Agency (Pvt.) Ltd. v. Assistant Commissioner-II, SRB and others [2015 PTD 160].      

4.         While confronted with hereinabove legal position, learned counsel for the petitioner could not submit any reasonable explanation, however, submitted that proposed treatment by the respondent is totally illegal and contrary to the facts of the case of the petitioner. We are of the view that instant petition is not maintainable for having been filed on mere issuance of Show Cause Notice, which prima facie does not suffer from any jurisdictional defect or patent illegality, whereas, the objections raised by the petitioner through instant petition can be agitated before the statutory forums while submitting the response/reply to the impugned Show Cause Notice, which shall be considered by the respondents, who shall pass appropriate order strictly in accordance with law. Accordingly, instant petition was dismissed in limine vide our short order dated 16.02.2021 and these are the reasons of said short order.

5.         However, it is clarified that the dismissal of instant petition in the above terms would not effect the merits of the case of petitioner, which shall be considered by the respondents, who shall pass appropriate order in accordance with law. 

           J U D G E

                   J U D G E

Farhan-PS