[The News International 13 November 2019] ISLAMABAD: Justice Mansoor Ali Shah of the Supreme Court of Pakistan Tuesday asked the defence counsel whether a complainant could be asked for submitting further information instead of bringing the executive authorities in action for collecting material for a private complaint, filed against the petitioner.
He raised the question as a member of a 10-member full court of the apex court, headed by Justice Umar Ata Bandial. The bench resumed hearing in the identical petitions, challenging the presidential reference, filed against Justice Qazi Faez Isa for allegedly not disclosing foreign properties of his family members in wealth statement.
Babar Sattar, the counsel for Justice Qazi Faez Isa replied that there was a procedure available whereby the complaint, filed against a judge could be examined. He submitted that Article 209 of the Constitution is not meant only for removal of judges of the superior courts but to protect their tenure also. He submitted that judge can only be removed on charge of misconduct following due legal process. The counsel also questioned the legality of the newly established Assets Recovery Unit (ARU) before the Supreme Court with the contentions that the notification of the Unit was issued after the process of collecting the material for filing a presidential reference was initiated.
Other members of the full court were Justice Maqbool Baqar, Justice Manzoor Ahmed Malik, Justice Faisal Arab, Justice Mazhar Alam Khan Miankhel, Justice Sajjad Ali Shah, Justice Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi and Justice Muhammad Qazi Amin Ahmed.
Continuing his arguments, Babar Sattar, member of the legal team of Justice Qazi Faez Isa submitted before the court that the notification of ARU was issued on July 9, 2019 while the process of collection of material for the reference was initiated earlier.
“As per law, it cannot take effect retrospectively, hence all actions taken by the Assets Recovery Unit are not valid in law,” Babar Sattar contended.
He submitted that the letter of Assistant Commissioner Income Tax, on which the president formed opinion for sending a reference against the petitioner to Supreme Judicial Council (SJC) reflected an unauthorised access to record hence it proved mala fide.
He submitted the petitioner had not committed any breach of Foreign Exchange Regulations Act 1947 as claimed in the reference.
“The environment created in the presidential reference regarding breach of the said Act has no weight as there was no material evidence that establish any breach of law,” Babar Sattar submitted. He argued that the legal position regarding foreign exchange was that every citizen was free to either bring or take out any amount of foreign exchange.
He contended that under Section 121, 122 and 123 of Income Tax Ordinance 2001 there is no advisory jurisdiction under which such an advice could be tendered.
Justice Yahya Afridi asked the learned counsel as to whether the Assistant Commissioner Income Tax can respond to a query, adding that which authority can respond to a query. Sattar replied that it is to be the commissioner under Section 122(1) of the said Ordinance.
“This is a requirement of law that powers has to be delegated to respond to such a query but here no such direction exists,” Sattar contended.
Elaborating further, the counsel submitted that as per law the Director General (DG) Income Tax has to delegate powers to commissioner, the commissioner to deputy commissioner and finally DC to assistant commissioner.
He said that the assistant commissioner had no jurisdiction to submit a report before the president and even he cannot access any record regarding income tax unless there is proper notification by the competent authority to do so.
“The entire process was without jurisdiction on which the opinion of the president was based on,” Sattar contended adding that the whole process adopted has been detrimental to the country and spirit of the Constitution.
The counsel submitted that so far there had been no assessment of income tax liabilities of spouse of the petitioner and no show-cause notice was issued to her then; otherwise, she would have either paid the income tax or filed an appeal against the assessment but no such process had taken place.
To a query, Babar Sattar informed the court that Justice Qazi Faez Isa got registered with the Federal Board of Revenue (FBR) on March 11, 1999. He submitted the FBR process for access to information regarding income tax cannot be bypassed by any other authority and even by the Supreme Judicial Council as well.
Meanwhile, the court adjourned the hearing for Wednesday (today). Justice Umar Ata Bandial asked the counsel to conclude his arguments on tax laws to which Babar Sattar replied if queries were not put before him, he will conclude the arguments. “Let’s have a brisk 20-20 tomorrow,” Justice Bandial told Babar with smile.