Appointment of ATIR members: No procedure prescribed as per rules: IHC

ISLAMABAD: The Islamabad High Court (IHC) observed that no procedure has been prescribed for appointment of members under “Appellate Tribunal Inland Revenue Appointment of Chairperson and Members Rules, 2020”.

In this regard, the IHC has issued an order in the writ petition number 2238 of 2022.

The Prime Minister, through a notification, appointed judicial members of BS-21 to the ATIR. The petitioner, Mudassir Malik, a member of Hazara Bar Association, requested the IHC to declare these appointments as illegal, malafide, unlawful, ultra vires and unconstitutional. Prime Minister, Law Ministry, the FPSC, judicial members and Establishment Division had been made respondents.

IHC order states “the key question before the Court is the process to be followed for purposes of appointment of Members of the Tribunal. Law Ministry (Respondent No.1) in its comments has appended a copy of the ATIR (Appointment of Chairperson and Members) Rules, 2020).

Case of getting inadmissible tax refunds: ATIR turns down rectification plea filed by Chinese firm

The Rules; however, do not prescribe the process or the manner in which appointments are to be made. It merely states in rule 3 (6) of the Rules that a Member shall be appointed by the Prime Minister in consultation with the Chief Justice of Pakistan“.

The petitioner has requested the IHC to cancel the notification because all such appointments had been made in violations of the rules and regulations applicable in such employment. It is in direct violation of Article 240 of the Constitution read with law governing Appointment on Contract Basis under Civil Establishment Code and intentional contempt of binding verdicts of Supreme Court in 1998 SCMR 2190 & 2013 SCMR 1140, Pakistan Electronic Media Authority vs. ARY (2022 SCP 268), 2013 SCMR 1159, Mushtaq Mohal vs. Lahore High Court (1997 SCMR 1043) and Abdul Jabbar (1996 SCMR 1349).

Income Tax Ordinance, 2001, states that Members of the ATIR shall be appointed “in such manner as the Prime Minister may prescribe by Rules”. It appears that no manner for appointment of the Tribunal has been prescribed. The next question then arises in the absence of any prescription of the manner and process for appointment of members of the Tribunal as to what would be an acceptable, competitive and transparent process that would need to be followed for the appointments to pass legal muster in view of the guidelines laid down by the Supreme Court in various judgments, including Syed Mubashir Jaffri (2014 SCMR 949) and Muhammad Ashraf Tiwana (2013 SCMR 1159). The learned counsels for the respondents seek some time to assist the Court on these questions, IHC order added.

Copyright Business Recorder, 2024