ISLAMABAD: Sarina Isa has said the Supreme Court's order directing the Federal Board of Revenue (FBR) is in violation of the right to a fair trial guaranteed under Article 10A of Constitution.
Sarina Isa, the wife of Justice Qazi Faez Isa (petitioner), on Monday, filed a review petition under Article 188 of the Constitution.
A 10-member bench, headed by Justice Umar Ata Bandial, on June 19, 2020 had passed a short order.
The bench passed unanimous order to quash the reference and abate the proceedings before the Supreme Judicial Council (SJC).
However, seven judges had ordered the FBR to issue notices under the Income Tax Ordinance, 2001, and asked the petitioner to once again provide and explain the sources of funds for the properties to the board.
Sarina stated that the top court could not legally mandate her to do what the law did not required her to, that was, (i) provide source of funds to FBR for properties acquired in tax years 2004 and 2013 for which the prescribed limitation periods have expired; (ii) provide income information in relation to tax years for which petitioner's assessment orders have attained finality; (iii) provide information to the FBR without any proceedings pending against the petitioner; (iv) enable the FBR to conduct a roving inquiry into the tax affairs of the petitioner; (v) provide information about foreign currency accounts, which are protected by special laws, and such special laws prevail over the general law - the Income Tax Ordinance, and which it specifically excludes; and (vi) get a certificate of good behavior from the FBR.
The chairman, FBR cannot be directed to place the petitioner's tax returns before the Supreme Judicial Council as no provision of law authorises the said exercise of power and violates the petitioner's vested rights under the Income Tax Ordinance, and the Constitution, including Articles 4 and 14.
The directions issued to the FBR and the Council regarding the petitioner and her children are in respect of private citizens and could not be issued in exercise of powers under Article 184(3) of the Constitution, said the petition.
Sarina Isa submitted that the properties have always stood in her name and her children, and the ownership has never been concealed or denied.
"Justice Isa had no concern with the properties. Justice Isa had no obligation to declare the properties as part of his income or wealth tax returns. The petitioner volunteered to assist the Supreme Court by identifying the source of funds leading to acquisition of the properties despite having no obligation to do so under law," she submitted.
Such assistance was rendered in an earnest effort to maintain the sanctity of the judiciary and assist the Supreme Court in dispensing "complete justice".
She stated that the properties have been disclosed in her tax returns for the year 2018 and for the year 2019 because the law was made to now require this.
The Court directed the commissioner to conclude proceedings within 60 days of the receipt of notice, and to issue an order within 75 days of receipt, with no adjournment or extension.
The Court also directed the FBR chairman to submit a report containing "the entire record of the said proceedings" before the registrar of the Supreme Court.
The act of receipt by the registrar was to be deemed the receipt of information by the Supreme Judicial Council, with any further action taken to be deemed suo motu. Hereinafter referred to as the "Impugned Order".
Sarina Isa submitted that she was not a party to the Justice Isa's petition; not a party to any of the other petitions; not issued a notice by the Court; not even once heard; not provided a single opportunity of hearing; not made a party in any of the other petitions, that is, Justice Isa's petition and others heard with it; and not even provided a copy of the impugned order, an order which mostly discussed the petitioner and was against her.
In such circumstances, she would have been fully justified to ignore the impugned order. However, she has the greatest respect for this Court and all courts, and appeared before the FBR. She alleged that the Inland Revenue Commissioner, Zulfiqar Ahmad, is the same person who had sent notices to her and her non-dependent children.
"He has been chosen by the executive and assigned the matter. Zulfiqar Ahmad has already expressed an adverse opinion, and should not have been chosen for the task. However, he has been assigned the same task again, probably for this very reason. Once the petitioner's RTO had been changed back to Karachi, Zulfiqar Ahmad had no jurisdiction and is legally not empowered to have issued notices to the petitioner. By directing the FBR to issue notices, the Court has assumed executive powers and functions, which is not permitted under our constitutional framework.
Copyright Business Recorder, 2020