SOHAIL SARFRAZ

ISLAMABAD: The Supreme Court had upheld Lahore High Court verdict that time barred representation under Article 32 of the Federal Tax Ombudsman (FTO) Ordinance 2000 before President of Pakistan would be liable to rejection.

A three-judge bench led by the Chief Justice of Pakistan Mian Saqib Nisar has confirmed the Lahore High Court order wherein Presidential order against FTO was set aside in a constitutional petition. As a result appeal preferred by the Federal Board of Revenue has been dismissed by the Supreme Court.

According to the judgment of the SC, Federal Tax Ombudsman Ordinance, 2000 is a comprehensive legislative instrument and a complete code in itself in consonance with its objects.

When contacted tax lawyer Waheed Shahzad Butt told this correspondent that Supreme Court in “PLD 1989 SC 109” already appreciated the jurisdiction of the Mohtasib in redressing public grievances caused due to maladministration of Federal Government agencies and observed that this institution is the most appropriate forum for the purpose.

Tax lawyer further added that more than half dozen constitutional petitions are pending in Lahore and Peshawar High Court against the office of President to arbitrarily reverse the FTO orders. It is not possible to mould the term “maladministration” under a rigid definition. The dictionary meaning of the term ‘maladministration’ is “to handle a matter inefficiently or improperly”. In its wider sense, it refers to various types of mal-practices which are opposed to law, fair play and principles of equity and justice.

SC order states “On a complaint filed by respondent against the appellant-department, the FTO passed an order and made a recommendation in favour of the respondent which (order) was not assailed by the appellant by way of a representation in terms of Section 32 of the Establishment of the Office of FTO Ordinance, 2000 (the Ordinance). Instead the appellant filed a review petition in terms of Section 14(8) of the Ordinance which was dismissed vide order dated 26.1.2004. This order was then challenged by the appellant through a representation under Section 32 of the Ordinance which was accepted by the President on 9.6.2005. Aggrieved, the respondent challenged the order through a constitution petition which was allowed by the High Court through the impugned judgment.

The Ordinance is a comprehensive legislative instrument and a complete code in itself in consonance with its objects. The powers of the Federal Tax Ombudsman are enunciated by Section 14 of the Ordinance. Section 10 of the Ordinance sets out the procedure to deal with complaints or grievance petitions and the process of collecting and recording of evidence. Section 11(1) of the Ordinance prescribes “If the Federal Tax Ombudsman is of opinion that the matter considered amounts to mal-administration, he shall communicate his finding with a recommendation to the Revenue Division within a period of sixty days from the date of receipt of the complaint, reference or motion, as the case may be. It is further provided by Section 11(2) that “The Revenue Division shall, within such time as may be specified by the FTO, inform him about the action taken on his recommendations or the reasons for not complying with the same”. Be that as it may, recourse against any recommendation made pursuant to Section 11, is provided by means of a representation to the President as prescribed by Section 32 of the Ordinance. In addition, the Federal Tax Ombudsman is also empowered by Section 14(8) to exercise the power of review: SC order stated.

From the said noted provisions of the Ordinance, particularly Section 32 thereof, it is abundantly clear that when the Revenue Division or any person is aggrieved of a recommendation made by the FTO in terms of Section 11 of the Ordinance, it/he may file a representation to the President of Pakistan within 30 days of such recommendation. This remedy of representation, though not stricto sensu akin to an appeal, is nevertheless a statutory remedy and, therefore, the provision must be strictly construed and applied, meaning thereby that a representation is only available to either the Revenue Division or an aggrieved person as against a recommendation of the FTO within 30 days’ time. Section 32 of the Ordinance does not envisage a representation against an order passed by the FTO which is not in the nature of a recommendation. However, as mentioned earlier, Section 14(8) of the Ordinance empowers the FTO to review “any finding communicated or recommendation made or any order passed by him”. If, whilst exercising this power of review, the FTO sets aside his earlier decision, irrespective of whether it was a recommendation or not, and passes a new recommendation in the order of review, then this (new recommendation) shall have been passed pursuant to Section 11(1) ibid and a representation would be competent against it. Conversely, where a recommendation earlier made by the FTO is not set aside while exercising the power of review, the order dismissing the review petition would not be tantamount to a fresh recommendation in terms of Sections 11 and 32 of the Ordinance against which a representation could be competently filed. In light whereof, we do not find any merit in this appeal which is hereby dismissed, SC order added.