Tax writ deduction during appeal is against the law.









The court decided that the recovery from M/s Radiant Medical Limited's bank accounts in Lahore was unlawful and violated the Income Tax Ordinance. They ruled in favor of the petitioner, stating the recovery was invalid during the appeal process.

The main point decided by the court was that the recovery made by the Inland Revenue Officer from the bank accounts of M/s Radiant Medical (Private) Limited in Lahore was deemed unlawful and in violation of the provisions of the Income Tax Ordinance. The court emphasized that the recovery under Section 140 of the Ordinance was unauthorized and should not have been conducted while the petitioner's appeal process was ongoing under Section 12 of the Ordinance. Therefore, the court ruled in favor of the petitioner, declaring the recovery as invalid and without legal effect.


Writ Petition No.34736 of 2024
M/s Radiant Medical (Private) Limited 
The Federal Board of Revenue and others 
 
 03.06.2024
Mr. Naveed Zafar Khan, Advocate for the petitioner.
Mr. Muhammad Mansoor Ali, Assistant Attorney General for 
Pakistan (On Court’s call). 
Ch. Muhammad Ashfaq Bhullar, Advocate/Legal Advisor for 
the respondent-FBR. 
In this petition under Article 199 of the Constitution of 
Islamic Republic of Pakistan, 1973 (‘Constitution’), the 
petitioner has assailed the recovery made by the Inland 
Revenue Officer-respondent No.5 from the Bank Accounts 
maintained by the petitioner at National Bank of Pakistan, 
Model Town Branch, Lahore and Bank Al-Falah, Shadman 
Branch, Lahore pursuant to the notice dated 31.05.2024 
(erroneously mentioned as 31.05.2023 on account of 
typographical therein) in purported exercise of authority 
under Section 140 of the Income Tax Ordinance, 2001 
(‘Ordinance’).
2.
Learned counsel for the petitioner contends that the 
impugned recovery made under Section 140 of the Ordinance 
is manifestly in violation of the proviso to sub-section (1) of 
Section 140 of the Ordinance thus without lawful authority 
and of no legal effect. He maintains that even otherwise 
recovery could not be effected by the revenue authorities 
from the petitioner during pendency of its appeal under 
Section 12 of the Ordinance till adjudication of liability of the 
petitioner by at least one outside departmental form i.e. 
Appellate Tribunal Inland Revenue. In support of his 
Writ Petition No.34736 of 2024
2
contentions, learned counsel for the petitioner has relied upon the judgment 
of this Court in the case of China Machinery Engineering Corporation, 
Pakistan Branch Vs. Federation of Pakistan and others (2024 PTD 242).
3.
Conversely, learned Legal Advisor for the revenue authorities, who 
has appeared on watching brief, has opposed this petition on the ground that 
the stay order granted in favour of the petitioner by the Commissioner 
(Appeals) has lapsed after expiry thereof despite granting extension therein 
and the appeal was adjourned on request of learned counsel for the 
petitioner on the last date of hearing, which is now transferred to the 
Appellate Tribunal Inland Revenue in view of the Tax Laws (Amendment) 
Act, 2024 dated 09.05.2024. He adds that in the absence of any stay order, 
respondent-department was well within its right to effect recovery of tax 
due against the petitioner, as determined in the amended assessment order, 
while invoking Section 140 of the Ordinance. He maintains that the deposit 
of 10% tax was only meant for the extension of stay order before the 
Commissioner (Appeals) where a taxpayer volunteered, which is not the 
case here. He further contends that the pay orders have been deposited in 
the treasury account and the amount has been realized.
4.
Heard. Record perused. 
5.
By now it is well settled that the tax allegedly due from a taxpayer 
cannot not be recovered before adjudication of liability in appeal preferred 
by a taxpayer before at least one extra departmental forum i.e. Appellate 
Tribunal Inland Revenue. Reliance in this case is placed on the cases of 
Messrs Pak Saudi Fertilizers Vs. Federation of Pakistan and others (2002 
PRTD 679), Z.N. Exporters (Pvt.) Ltd Vs. Collector of Sales Tax (2003 
PTD 1746), Brothers Engineering (Pvt.) Ltd. Vs. Appellate Tribunal Sales 
Tax (2003 PRTD 1836) and Messrs Islamabad Electric Supply Company 
Limited Vs. Additional Commissioner Inland Revenue and others (2024 
PTD 30).
Writ Petition No.34736 of 2024
3
6.
Section 140 (1) of the Ordinance is reproduced as under:-
140. Recovery of tax from persons holding money on behalf of a 
taxpayer.—(1) For the purpose of recovering any tax due by a 
taxpayer, the Commissioner may, be notice, in writing, require any 
person—
(a)
owing or who may owe money to the taxpayer, or 
(b) 
holding or who may hold money for, or on account of 
the taxpayer;
(c)
holding or who may hold money on account of some 
other person for payment to the taxpayer; or 
(d) 
having authority of some other person to pay money 
to the taxpayer, 
to pay to the Commissioner so much for the money as set out in the 
notice by the date set out in the notice:
[Provided that the Commissioner shall not issue notice under this 
sub-section for recovery of any tax due from a taxpayer if the said 
taxpayer has filed an appeal under section 127 in respect of the 
order under which the tax sought to be recovered has become 
payable and the appeal has not been decided by the Commissioner 
(Appeals), subject to the condition that [ten] per cent of the said 
amount of tax due has been paid by the taxpayer.]
It is manifest from perusal of the proviso to sub-section (1) of 
Section 140 of the Ordinance that the same creates exception to the 
recovery of tax from a person holding money on behalf of a taxpayer. Such 
exception expressly prohibits Commissioner from issuing notice under this 
sub-section for the recovery of any tax due from a taxpayer if said taxpayer 
had filed an appeal under Section 127 of the Ordinance in respect of the 
order under which the tax sought to be recovered has become payable and 
the appeal has not been decided. The above prohibition indeed recognizes 
the principle of law enunciated in Paragraph No.5 of this order. The said 
prohibition, however, is subject to the condition that 10% of the said 
amount of tax is paid by the taxpayer. This clearly means that as long as the 
taxpayer is ready and willing to satisfy the condition specified in the 
aforementioned provision to Section 140(1) of the Ordinance, coercive 
measure visualized under the aforementioned Section cannot be pressed 
into service. 

Writ Petition No.34736 of 2024
4
7.
On Court query, it is apprised by learned counsel for the petitioner 
that 10% amount of the tax allegedly due has never been demanded,
however, the petitioner is ready to satisfy the condition forthwith. 
8.
It is an undisputed position that the appeal preferred by the petitioner 
under Section 127 of the Ordinance against amended assessment is still 
pending. It is equally uncontroverted by the respondent-department that the 
petitioner has never been asked to pay 10% of the amount of tax due from 
it against which an appeal under Section 127 of the Ordinance has been 
preferred by the petitioner. 
9.
In view of the unequivocal provision of the sub-section (1) of 
Section 140 of the Ordinance, recovery proposed to be effected by the 
department beyond 10% of the tax liability of the petitioner as determined 
in the amended assessment order, is without lawful authority. 
10. For the foregoing reasons, this writ petition is partially allowed and 
the respondents are directed to ensure that the amount recovered from the 
Bank accounts of the petitioner pursuant to the impugned notice under 
Section 140 of the Ordinance is reimbursed to the petitioner or credited to 
the same Bank accounts within a period of 20-days after deducting 10% of 
the tax liability therefrom. There shall be no order as to costs.
 (RAHEEL KAMRAN)
 
 
 JUDGE
Approved for Reporting 
 JUDGE


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