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P L D 2000 LAHORE 20

Messers SYED BHAIS (PVT.) LTD. through Company Secretaty
V/S
GOVERNMENT OF THE PUNJAB, EXCISE AND TAXATION DEPARTMENT

Per Ch. Ijaz Ahmad, J.(a) Constitution of Pakistan(1973) Art. 199

Taxation Department has framed the rules vide notification, dated 23-4-1998 but the rules are not providing sufficient guidelines for the implementation of section 7 of the Punjab Finance Act is letter and spirit. Clause (a) of section 7 reveals that Government has power to impose tax on any other vehicle of the same capacity of engine but the rules are silent and do not provide guidelines. Therefore, rules are not properly framed to achieve the purpose of the Act and are declared ultra vires.

37. Learned Advocate-General, Punjab has given following statement:-

(1) “The vehicles registered prior to 30th of June, 1994 which are registered in Pakistan would not be subject to tax.
(2) The cases in which the dispute is with regard to Engine capacity the petitioner may approach the Department and prove from documents by the release or given by the manufactures that their vehicles are fitted with Engines of a capacity less than the prescribed capacity. Once it is proved the owners of these vehicles shall also not be taxed.”[p. 49]O

(b) Constitution of Pakistan(1973) Art. 199

It was also contended that the impugned Act creates unreasonable classification which is not permissible under Constitution. This argument is not sound. It is settled proposition of law that reasonable restriction is permissible, therefore, contention of the learned counsel of the petitioners that the Engine capacity of 2000 and Mercedes etc. in unreasonable classification has not force.[p. 43]F

(c) Constitution of Pakistan(1973) Art. 199

I am also fortified by the judgment of the Supreme Court in Jehangir Mirza’s case PLD 1990 SC 1013. The learned Additional Advocate-General also placed on record the Rules which were issued vide Notification No. S.O. Tax (E&T)(1)97(LV) of 1997. Therefore, during pendency of the writ petitions this lacuna was removed by the respondent and this Court can like notice of the subsequent events. (1990 CLC 1069).[p. 41]C

(d) Constitution of Pakistan(1973) Art. 4

It was further urged that the tax is bad in law as it was levied with retrospective effect. It is settled proposition of law that Legislature has authority to frame the law retrospectively (1993 SCMR 1905) Article 2 of the Constitution of 1962 or Article 4 of the Constitution of 1973 does not control the power of the Legislature to frame the laws having retrospective effect.[p.41]D

It is settled proposition that Constitution should be read as organic whole. The Article of the Constitution do not reveal prohibition that the Pakistani Legislatures/Parliament and Provincial Assembly do no possess the right to make retrospective legislation which every sovereign Legislature possesses. The only express limit imposed upon the power of retrospective legislation is that Legislatures cannot make retrospective penal laws, meaning thereby any other law including taxation law may, therefore, be made with retrospective effect under the Constitution. I am fortified by leading judgment on the subject by the Hon’ble Supreme Court in Sala-ud-Din’s case PLD 1991 SC 546.[p. 43]E

(e) Constitution of Pakistan(1973) Art. 141, 142, 199

Whereever legislative powers are distributed between legislative bodies situations may arise where the two legislative fields might apparently overlap. It is the duty of the Courts, however, difficult it may be, to ascertain to what extent, the authority to deal with matters falling within these classes of subjects exists in each Legislature and to define, in the particular case before them, the limits of the respective powers. It could not have been the intention that a conflict should exist; and, in order to prevent such a result the two provisions must be read together, and the language of one interpreted, and, where necessary modified by that of the other.[p. 44]H

(f) Constitution of Pakistan(1973) Art. 142

When the impugned Act is not covered specifically either of the two lists then it is the prerogative of the Provincial Legislature to frame the law by virtue of Article 142(c) being residuary power of Provincial Legislature.[p. 47]L

(g) Constitution of Pakistan(1973) Art. 142

When the impugned Act is not covered specifically either of the two lists then it is the prerogative of the Provincial Legislature to frame the law by virtue of Article 142(c) being residuary power of Provincial Legislature.[p. 47]L

Even otherwise the pith and substance of the impugned Act is covered under Item 33 of the Concurrent Legislative List and not in Item No. 50 of Part-I of the List.[p. 47]M

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